Answers Posted By V Jonas Urba

Answer to Previous employer states I violated a non-compete agreement

You probably should have asked the person before you solicited.

You probably should retain a lawyer if the letter informs you that you face some type of action or you need to take action.

CAUTION if you attempt to negotiate this yourself as a recent client of mine did bad things could happen.

The attorney's fees of the other side might be $400 or more hourly to begin with in federal court in NY.

posted Oct 26, 2018 04:13 AM [EST]

Answer to Should performance goals be adjusted when a employee has taken intermittent FMLA?

FMLA has nothing to do with job performance.

If an employee qualifies for an accommodation under the ADA, which might include adjusting quotas if reasonable and not an undue hardship that's a different matter.

But every employee must perform the essential functions of their job with or without accommodation.

If you asked for FMLA after being notified of performance issues be very concerned.

Seek legal counsel ASAP. Can't tell you how many employees (many) get fired the day after returning from FMLA. And many are completely lawful.

posted Oct 20, 2018 09:39 AM [EST]

Answer to Does offering the option to convert bonus $ to vacation violate laws or compromise exemption status

You should not rely on answers to contract type questions from any lawyer who has not reviewed your compensation structure and your exemption status for any particular employee. The Fair Labor Standards Act and NYS Labor Laws protect employee pay. Were you to find yourself facing a federal lawsuit the exposure for damages, both corporate and individual, could be substantial. Consult an employment lawyer before potentially misclassifying any employee. An employee who is truly exempt is generally not entitled to vacation otherwise they would be your employee. Many lawyers in the metro area charge close to $10,000 just as an initial retainer were you sued in federal court.

posted Oct 12, 2018 06:09 AM [EST]

Answer to I received a lump severance payment in the amount of $30K. My former employer miscalculated my deductions by $5K. I have written twice to the employer to see about fixing this mistake with no answer. Do I have any recourse? This took place in NY.

Will you not be entitled to a refund from the IRS? If so what is the harm in waiting a few months to recover the deduction which their payroll service apparently calculated should be withheld?

In New York City it is not unusual to have employers withhold approximately half of a severance payment for estimated taxes, regardless of how much you would normally pay in taxes. Employees recover overpayments from the government at tax time.

If the deductions were not due to estimated taxes but improper benefits or other unauthorized deductions then you should contact the New York State Department of Labor for underpayment of wages owed.

posted Oct 5, 2018 12:25 PM [EST]

Answer to Can I be demoted and then replaced with a new hire that my boss likes better?

Great question!

Favoritism is not illegal. Changing organizational structure is also not illegal. Neither is saving money.

What an employment lawyer does is to explore whether you belong to any protected class of employees. One group is employees older than 40. Another group is anyone with an emotional or physical disability who might require an accommodation or someone who has taken FMLA leave to care for immediate family with serious health conditions or themselves. Or even persons who dont look like what the company wants their employees to look like (i.e. very masculine or very feminine or married or straight, etc...).

When we agree to meet someone in person we have identified what we might believe is really going on and we might charge for that 2 hour consultation. But no need for that if 30 minutes on the phone does not reveal a probable theory of recovery.

These are tough cases. Dont let anyone tell you that they are not. But why have I taken 15 minutes to answer your question? Because you took the time to structure the question in such a way that you sound like you probably do a great job. And when someone takes that kind of time it's the type of person that might be someone able to invest the time to do this correctly. No lawyer can win an employment claim without a client who truly cares, is honest, will work with the lawyer even weekends which every decent employment lawyer works, and has the insight for detail to facts to help the lawyer put the dots together.

It's not illegal to hire your party buddies. It is illegal if all your party buddies are in their 20s and hiring them replaces all the good employees over 40. That's just one example of a protected class of employees. Thanks for taking the time to draft a very well written question. We help people across the state, sometimes representing people I never personally meet. Good luck and call some employment lawyers who limit their practices to these challenging cases.

posted Sep 22, 2018 06:39 AM [EST]

Answer to was laid off late February 2018 and employer instead of lump sum severance kept me on payroll for 6 months. While receiving the monthly payments I have applied to over 160 jobs and have no offer of employment. Was told I could not apply for unemployment u

Apply honestly! Tell DOL exactly what happened. You were fired or laid off whatever they told you or wrote you exactly as they communicated it to you. Do not alter what they actually told you.

Fully disclose that you have been paid you for 6 months and totally disclose all money from anywhere which you have received for the last 6 months. This is NY. Not cheap to live here. The DOL knows people do all kinds of things to survive. Tell them how you have survived or prepared to survive in the future.

Do it quickly because your severance is taxed but you do not receive credit for severance payments as earnings so do not pretend it was regular wages. It was not and tell DOL that regardless of what the employer may tell DOL. Do not participate in anything but the truth.

You can not collect benefits while salary is being paid as severance. You should qualify now unless you have done something like start your own business, earn money you have not disclosed, etc... any fraud or misrepresentation by you to DOL will not turn out well. They will find out now or later; maybe 5 years from now as I have witnessed.

posted Sep 9, 2018 10:59 AM [EST]

Answer to If it is listed in the company handbook that vacation is earned through years of service. Can a new hire be offered extra weeks of vacation as incentive instead of having to for the years of service? NY

Almost every employee handbook states that it is not a contract. Just a guideline. It can be changed at any time. The employer could take away vacation from everyone next week.

That's the catch. If your employer offers the extra week to a white male and not a black male that would be discriminatory just like offering it to a 45 year old and not making the same offer to a 60 year old would also likely be discriminatory. Your employer now likely has to offer that benefit to everyone or take it away from everyone. They put themselves into a bind didn't they?

posted Sep 3, 2018 08:14 AM [EST]

Answer to Can I be fired twice from a union job for the same thing , can I get help with a settlement case for discrimination

Maybe. You do know that a legitimate non-discriminatory reason knocks out essentially all discrimination. What that means is that if your union did not contest and successfully challenge your terminations how will you prove discrimination? Schedule an appointment with your local EEOC office for the gory details of what this means.

posted Aug 31, 2018 05:58 AM [EST]

Answer to Do we have a case - disability discrimination, Civil Service Law violations

You posted your question on another list serve. Please review my response on that website.

Don't provide details about medical conditions on a public list serve.

Know that many of us prefer to speak with someone first before we begin reviewing potentially voluminous materials when a phone conference would have been more efficient.

Speak with employment lawyers first.

Those of us who don't return calls promptly might not do so down the road either? Our goal is to return calls same day or next business day at worst.

Choose your employment lawyer carefully. Although you can always change lawyers, if you do so, your first lawyer might have a fee lien which could affect whether other lawyers even want to get involved.

A fee lien means that the lawyer wants to be paid for their time should you eventually, at some time, recover. Your fist lawyer would usually get paid first, then your second or third lawyers.

posted Aug 29, 2018 2:15 PM [EST]

Answer to Hello I like to know if I can file a discrimination lawsuit against my employer. I was fired and I was verbally abused for something I did not do and for something I did not say. I was fired for something another crew member said about the company. I was

Were you actually fired or are you still working under reduced hours?

Were you subject to discrimination as a member of one or more protected classes of employees or does your manager simply not like you which is not illegal?

You definitely need to consult with an employment lawyer. Sounds like you dont be long to any union. If so your manager does not even need a reason to demote or fire you. An employment lawyer can explain in detail why that is true.

posted Aug 26, 2018 03:19 AM [EST]