Answers Posted By Steven V. Modica

Answer to Fired and told not to collect UI

Fired and Told not to collect UI

I would encourage you to file. You have NOTHING to lose.

You are not entitled to UI if you leave a job voluntarily or are terminated for "misconduct" within the meaning of the law. There is NO specific definition of misconduct, however, it is generally understood to be intentional bad behavior. Unless you were repeatedly warned about this issue, I think you can prevail.

The Unemployment Law Judges do a good job of questioning the Claimant (you) and any other witness that appears. My best advice is for you to tell the truth. If you believe that there is a critical witness who should testify for you, bring that person with you or ask the Judge to subpoena him or her.

Whether an event is "misconduct" within the meaning of the law (and thus would make you ineligible for benefits) largely depends on who is deciding the issue. If you want to see how other Unemployment Judges have decided similarly issues, check out:

http://www.labor.state.ny.us/business_ny/unemployment_insurance/interp/Section_1100.htm

I recommend that you get to the hearing site about 30 minutes early so you can look at the file. It will have information that the Department of Labor received from the employer that you may be unaware of.

I wish you well.

Steven V. Modica, Esq.
Modica & Associates
2430 Ridgeway Avenue
Rochester, New York 14626
(585) 227-2070
(585) 227-2306 FAX
www.modica-associates.com


posted Oct 31, 2004 09:39 AM [EST]

Answer to worker's comp discrimination lawyer

Workers' Compensation Discrimination

In New York, if you do not have an employment contract (or are NOT represented by a labor union), you are an "employee-at-will." This means that an employer can harass, discipline or even fire you for any reason, no reason, good reason or bad reason. Believe it or not, they can fire you because you are a Buffalo Bills fan.

There are some exceptions, however, to the employment-at-will doctrine. The employer cannot take adverse action against you that is motivated by your race, religion, sex, national origin, age, disability, marital status, military status or sexual orientation. Moreover, it is illegal for an employer to retaliate against someone who complains in good faith about these forms of unlawful discrimination.

If you can prove that one or more of these factors has motivated how you were treated, there are federal and state laws that may protect you. The federal law (which has the better remedies) is enforced by a federal government agency known as the Equal Employment Opportunity Commission ["EEOC"].

To protect your rights under these laws, you must first file a charge of discrimination with the EEOC WITHIN 300 DAYS from the date of the event that you wish to challenge. You do not have to hire a lawyer to file a charge with the EEOC. To contact the EEOC, call the Buffalo office at (800) 669-4000. You can visit the EEOC web site at http://www.eeoc.gov

Section 120 of the NY Workers' Compensation Law prohibits an employer from discriminating against an employee because he filed a Workers' Compensation claim or otherwise participated in such a claim (e.g., by testifying).

To learn more about Section 120, including getting the complaint form, check out:

http://www.wcb.state.ny.us/content/main/forms/dc120.pdf

WC discrimination claims are very difficult at the WC law judges don't like them much. Notwithstanding, you should get an evaluation from a qualified lawyer before starting a claim.

The statute of limitations to file a WC discrimination claim is 2 years from the date of the event you want to challenge.

Good luck.


posted Jan 3, 2004 3:24 PM [EST]

Answer to non-compete extremly vaige

Non-Compete

New York Courts are not particularly fond of enforcing non-compete agreements. They will enforce such agreements, however, when they are designed to prevent an employee who provided "special or unique" services from an unfair competitive advantage. Courts look at many factors including, but not limited to, what (if anything) was given in consideration for the non-compete restriction, the length of the non-compete restriction and the scope of the non-compete restriction. These are just some of the issues that may affect whether a Court enforces a non-compete agreement.

You should consult with a qualified lawyer. You may have more rights than you think.


posted Nov 14, 2003 10:00 AM [EST]

Answer to non-compete contract interpretation

non-compete interpretation

This is strictly a matter of contract. If not defined, common sense should apply. The answer could also depend on the type of business. For example, for a restaurant in the Armory Square section of Syracuse, five miles would probably be measured in street driving and NOT "as the crow flies."

Good luck.



posted Jan 15, 2003 3:40 PM [EST]

Answer to feeling betrayed,demotion

Demotion

In New York, if you do not have an employment contract, or are NOT represented by a union, you are considered to be an "employee-at-will." This means that you can be demoted (or even fired) for any reason, no reason, good reason or bad reason. Believe it or not, a person can be demoted or fired simply because they are a fan of the Buffalo Bills.

There are some exceptions, however, to the employment-at-will doctrine. An employer cannot take an adverse action against an employee that is motivated by their race, religion, sex (including pregnancy), national origin, age, disability or marital status. Moreover, it is illegal to retaliate against an employee who has complained, in good faith, of unlawful discrimination.

If you can prove that you have been discriminated against because of these factors, there are federal and state laws that may protect you. The federal law (which has the better remedies) is enforced by a federal government agency known as the Equal Employment Opportunity Commission ["EEOC"]. To protect your rights under these laws, you must first file a charge of discrimination with the EEOC WITHIN 300 DAYS from the date of the event that you wish to challenge. You do not have to hire a lawyer to file a charge with the EEOC. To contact the EEOC, call the Buffalo office at (800) 669-4000. You can visit the EEOC web site at http://www.eeoc.gov />
The federal law applies to employers who employ at least 15 people. If your employer employs less than 15 people, I recommend that you contact the New York state law enforcement agency known as the New York State Division of Human Rights ["DHR"]. To protect your rights under state law (which applies to employers who employ at least 4 people), you can file a charge of discrimination with the DHR WITHIN 300 DAYS from the date of the event that you wish to challenge. You do not have to hire a lawyer to file a charge with the DHR. To contact the DHR, call the Binghamton office at (607) 721-8467. You can visit the DHR web site at http://www.nysdhr.com/ />
Good luck.

posted Jan 11, 2003 09:38 AM [EST]

Answer to Physicians and the non compete clause

Physicians & Non-Compete

In New York, there is no statute (i.e., law passed by the Legislature and signed by the Governor) that restricts competition. It is strictly a matter of contract.

New York Courts generally disfavor non-compete agreements. One of the factors that weigh AGAINST enforcement of the non-compete is if the person subject to the restriction was terminated (and did NOT leave voluntarily). Another important factor is whether there is something unique and special about the employee that was developed on the employer's time.

Other factors that affect enforceability include: (1) length of the restriction; (2) geographical scope of the restriction; (3) whether the person received something of value for the restriction (e.g., higher annual salary with the restriction), etc.

I recommend that you get an evaluation by a qualified attorney. He or she can help you assess the risk that you will be sued, the costs of defense and the odds that you will prevail.

I wish you well.

posted Dec 8, 2002 7:20 PM [EST]

Answer to Unwelcome Contact by Boss

Unwelcome Contact by Boss

Read and follow the sexual harassment policy of your employer. I recommend that you carefully document each and every occurrence, including identifying witnesses and supporting documents.

Sexual harassment is illegal under federal and NYS law. To preserve and protect your rights, you MUST file a charge of discrimination with the Equal Employment Opportunity Commission ["EEOC"] within 300 days from the date of the event(s) that you wish to challenge.

There is an EEOC office in downtown Buffalo (Fountain Plaza). You can call them at (716) 551-4441. The agency also has a good web site (http://www.eeoc.gov).

You do NOT have to hire a lawyer to file a charge with the EEOC. Some people find it helpful, however, to have some legal support.

I wish you well.

posted Oct 31, 2002 7:02 PM [EST]

Answer to Non-compete anti-competitive?

Non-Compete

It is impossible for any responsible lawyer to give you sound advice without knowing much more about you, what you did for Agency A, the language of your non-compete and what you would be doing for Agency B.

That being said, Judges are NOT fond of non-compete agreements especially where, as here, YOU were laid off and did not leave voluntarily. That is just one of many factors that a court would weigh to determine whether the non-compete would be enforced as written or would be modified.

Putting this aside, if Agency B wants you badly enough, they may be willing to sign an agreement whereby, if you are sued by Agency A, they (Agency B) will pay for your legal defense (with you selecting the lawyer) and will pay for any judgement that might be entered against you.

I encourage you to get a comprehensive consultation from a qualified lawyer. I wish you well.

Steve Modica, Esq.
Modica & Associates
Rochester, New York

posted Feb 26, 2002 9:08 PM [EST]

Answer to job title and pay

Job Title & Pay

If you work for a private company in New York, and do not have an employment contract, you are considered to be an "employee-at-will". This means that you can be paid differently for any reason, no reason, good reason or bad reason. There are, however, some exceptions to this rule.

It is illegal to pay someone less if that decision is motivated by the employee's race, religion, sex, national origin, age, disability or marital status. Thus, the key issue is the employer's motive for paying less. Unless you can show the motivation was one of the reasons I mentioned, it may be difficult to prevail.

If you believe that you have been paid less because of one of these protected classifications, contact the US Equal Employment Opportunity Commission at 1-800-669-4000. You must file a charge of discrimination within 300 days from the date of the alleged discriminatory act that you want to challenge.

Good luck.

posted May 14, 2001 8:46 PM [EST]