Answers Posted By David M. Lira

Answer to Employee Surveillance/ Monitoring

Right of Privacy at Work?

Once again, employer conduct may be creating a "hostile environment" but that does not mean there is anything illegal about the conduct. Under the employment at will doctrine, an employer can be as nasty and unreasonable as it wants. A hostile environment becomes illegal only if it undertaken for an improper reason, for example, because of an employee's race, religion or gender.

Employees have no right of privacy in the workplace. You usage of computers, including e-mail, may be monitored, even down to the keystroke. You can be kept under constant observation. The only area where employers seem to run into some trouble has to do with toilets, but those cases usually indicated that the conduct was motivated by gender.

There is no requirement that employers have HR departments. And there are no rules saying that HR departments have to supervise employee monitoring.

posted Apr 2, 2007 12:05 PM [EST]

Answer to Full time job w/ benefits and a contract position simaltaneously

Working two jobs

I would have no way of knowing whether you are capable of working two full-time jobs at the same time. I can only tell you what the law may or may not require.

There is no law that I know of that you prohibit an employee from working two jobs at the same time. There may be some limitations only to the degree that the employers may be competitors because, while employed, an employee has a duty of loyalty to the employer.

I also know of no law requiring an employee to inform one employer that the employee has taken another (second) job with another employer. It may not be required by law, but my answer doesn't even attempt to answer the question of whether it might be good business to withhold this type of information.

There are a few other issues to keep in mind. For example, if an employee is hold two jobs simultaneously, neither employer has any obligation to accommodate the employee's needs with respect to the other job. If, for example, a scheduling conflict comes up, each employer would be well within its rights to demand that the employee give its work priority.

Further, although an employer has only a limited ability to prevent former employees from working for whoever they want, employers have the right to limit other employment of current employees. In other words, an employer can demand that its employees hold only one job, the jobs the employees have with that employer. If the employer had no such policy today, the employer could decide to impose such a policy tommorrow.

A limitation on a second job need not be total. So, an employer can limit current employees from working for competitors. Or, the employer can limit other work to only part time work. Or volunteer work.

posted Mar 16, 2007 3:49 PM [EST]

Answer to Changing Company Holiday Schedule

Losing Paid Holidays

There are really two questions here. The first is whether the employer can change the number of paid holidays. The answer is yes.

This is another permutation of the employment of will doctrine. It can be stated in a number of ways including: An employer may change the terms and conditions of employment at any time for any reason, or no reason at all. Another way of puting this is that the employer can take away any or all of your paid holidays at any time and for any reason.

Incidentally, what you are experiencing is part of a national trend over the past 25 years or so. The fact of the matter is that American workers (the trend has been different in, for example, Europe or even, believe it or not, Japan)over the past 25 years or so have been required to work longer and longer hours for less and less compensation. It is a by product of conservative economics.

The other question raised by this query has to do with religious holidays. Under Title VII of the Civil Rights Act of 1964, and the New York State Human Rights Law, an employer has a duty to accommodate the religious observances of its employees, including religious holidays. Although an employer is not required to pay employees for time off taken for religious holidays (it is not considered to be a penalty to not be paid for time not worked), an employer may not penalize employees for taking time off for religious holidays.

To get a religious accommodation for religious holidays, employees need to ask for the accommodation.

posted Mar 15, 2007 08:54 AM [EST]

Answer to contract

Special worker programs

There is a great deal in your query, and a great deal missing. I cannot, on a public sight like this, give you the type of response you really need. I strongly urge you to seek a private consultation with a qualified attorney, even if it costs you a few hundred dollars.

The federal government has set up a few programs that are designed to allow employers to recruit overseas workers with skills that are hard to find in the U.S. In theory, these workers are supposed to get a rate of pay comparable to U.S. workers. In theory, the importation of these foreign workers are not suppose to put downward pressure on wages in the U.S. In theory, these workers are also supposed to be here voluntarily, and are supposed to be accorded various protections. These employees are expected to look at the INS as their protectors. Many of their rights are supposed to be enforced by the INS.

How these programs actually work is entirely different. Now, I don't have the statistics. Perhaps the majority of employers play by the rules. All I know is that from my contact with workers in these programs these programs are easily abused by employers with negative consequences not only for these foreign workers, but for US workers as well. My experience puts the lie to "guest worker programs."

Too often these foreign workers are lied to. Too often, they find themselves in a type of involuntarily servitude, a type of slavery. They are constantly threatened with deportation. Many times, they are not even paid for the work they perform. The abuse decribed in this query is a new one to me, but not surprising -- the guest work finds herself having to pay the employer for "room and board" without having work, going further and further into debt on a daily basis.

posted Mar 12, 2007 08:57 AM [EST]

Answer to civil service seniority

Seniority of a Provisional

For advice, you need to set up a consultation. On this website, we use your questions as springboards to discuss general issues.

Maybe you have a discrimination situation, but civil servants should be very careful about raising the discrimination, or retaliation, or harassment flag too quickly. There is nothing wrong with these claims, but remember only certain forms of discrimination, retaliation and harassment are illegal. Even if we can assume that a civil servant really has a discrimination, retaliation or harassment claim, a civil servant may have other easier ways of dealing with their problems than a claim for discrimination, retaliation or harassment. These claims are difficult to prove.

Now, a provisional can have more seniority than a permanent appointment. But that is really of little help to a provisional. Provisional positions are temporary positions. Management often abusively use provisional positions to get around civil service requirements. But there are ways of stopping that.

A person can hold a provisional position for only a limited amount of time, I believe for a maximum of 18 months. The purpose of a provisional position is to fill a critical position until the next test. The provisional appointee is not supposed to get any kind of preference over other candidates in filling the permanent position. Under the Civil Service Law, you are not suppose to have permanent provisional positions, but I do know of people who started as provisional and remained provisionals until getting enough time in to get a civil service pension.

Unions are usually reluctant to deal with provisional appointments, because the provisionals become union members just like permanent appointments. However, it isn't uncommon for management to use provisional positions to frustrate the career goals of permanent employees. So, what can be done.

In New York, any citizen can challenge in court a violation of the civil service laws. So, for example, if you see a provisional continuing in a position beyond the period permitted, you can go to court to get an order requiring the agency to fill the provisional position on a permanent basis, through the open, preferably competitive, processes required by the Civil Service Law

posted Mar 8, 2007 07:34 AM [EST]

Answer to Can Employer insist on 45 hrs for non exempt?

Compulsory Overtime

An employer can require employees to work a schedule of more than 40 hours per week. There are certain limitations under New York law. But even accounting for those limitations, a 45 hour work week is certainly permissible.

Note, however, that for any time beyond 40 hours the employer must pay the affected non-exempt employees overtime pay at time-and-a-half of their regular rates. The employer has no authority to change this 40 hour workweek limitation.

Now, if an employee fails to work a required 45 hour schedule, the employer, under New York State's employment at will doctrine, has the right to terminate the employee, but the employer may not withhold pay. In New York State, you generally have to be paid within 2 weeks after the end of the work week. Employers are not allowed to withhold pay, with very limited exceptions.

posted Feb 19, 2007 11:32 AM [EST]

Answer to Severance pay discrimination

VP's not getting severance

There is no right to severance pay under New York law. However, when an employer voluntarily decides to provide a benefit, the benefit has to be provided without regard to the membership of employees in protected classes defined by race, national orgin, religion, gender, age or handicap.

When an employer offers a benefit such as severance to a large number of employees, the severance plan might become a plan governed by the rules established through the Employee Retirement Income Security Act ("ERISA"). ERISA prohibits employers from offering different benefits among similarly situated employees. However, ERISA does allow employers to make distinctions among different types of employees. Thus, an employer might decide to offer all full time employees a severance benefit, but deny all part time employees severance. It might offer executives a better package than offered to clerical employees.

The anti-discrimination laws are intent laws. Meaning, conduct is illegal only if there is proof that the motivation for conduct that was undertaken was, for example, the age of certain employees.

This is not to say that discrimination can never be proven based on its impact upon a certain class of people, but generally, the impact needs to be so statistically significant that the most likely explanation for the apparently objective result is a discriminatory motivation. That is, the statistical analysis needs to result in an expert opinion that says that most likely explanation for an observed result is discrimination.

In every discrimination case, employers have an opportunity to explain what may appear to be a discriminatory result. As the lawyers would say, employer can escape liability by showing it had a legitimate non-discriminatory reason for undertaking certain conduct that may have a discriminatory result.

In your example, I could see an employer saying that denying VPs severance if they decide not to relocate was not discriminatory because the real reason for doing this was to offer a strong incentive for particularly valuable employees to stay on.

Now, discrimination cases are very much fact driven. The outcome of a discrimination case depends on a thorough review of all of the many facts usually involved in employment cases. Your question offers only a limited number of facts. Whether an employer would succeed with an argument that it was only trying to keep valuable employees by offering a strong incentive would depend on many more facts than offered in your query.

posted Feb 13, 2007 10:16 AM [EST]

Answer to Conflict Of Interest Fraud & Harrassment

Forget the Spiderweb

No matter who you work for, you are an employee. In New York, you are entled to prompt payment of your wages. Prompt certainly doesn't mean 2 months. It does mean more like 2 weeks.

The problem here is that there is no quick way to get you paid. You might file a complaint with the New York State Department of Labor because of the practice of withholding pay for such an inordinate period of time. That might get the state on the back of these clowns to end the practice, but that still might not get you paid immediately.

Conceivably, you could go to court to get an order to make your employer immediately comply with state laws concerning prompt wage payment. Although state law might provide a way for you to get attorney's fees reimbursed, you would probably have to come up with a fair amount of money to support the litigation. There is also no guarantee that you'll get a judge who will act promptly on your motion. It would not surprise me that a judge would sit on your motion for 3 months, if not more.

posted Feb 5, 2007 1:07 PM [EST]

Answer to CIVIL SERVICE SENORITY OVER PROVISIONAL

Provisional Appointments

Caution to other readers: This answer deals with New York State civil service law. What is discussed here would have no application to private sector jobs in New York State.

This conflict concerning the relative seniority of a permanent appointee and a provisional appointee shouldn't exist at all because provisional appointments are supposed to be temporary. If I recollect correctly, a provisional appointment is suppose to last no longer than 18 months.

We shouldn't be hearing about provisional appointments that last for years. The idea behind a provisional appointment is to temporarily fill a needed position until it can be filled after the next civil service test.

This wouldn't be the first time that I've heard about long-term provisional employees. I've even heard of some who lasted so long that they retired with a civil service pension.

Unions have little interest in going after illegal long-term provisional appointments. Provisionals get the same benefits as permanents, and they pay the same union dues.

The public, however, gets harmed by the improper use of provisional appointments. Civil servants are supposed to be appointed on merit, and preferrably as a result of competitive examination. Provisional appointments, if not checked, allow in particular elected officials to go back to the old days, when you got a government job because of your connections and not your ability, a situation which history shows greatly undermined the efficiency of government.

Interestingly, because of the strong state policy against the improper use of provisional appointments, any citizen of the State of New York, including any permanent civil service employee adversely affected by an improper provisional appointment, can go to court and challenge the improper provisional appointment. The remedy is fairly severe. The court will order the governmental agency to eliminate the provisional appointment -- that is, the provisional employee, who was supposed to be temporary to begin with, gets fired.

posted Jan 29, 2007 08:18 AM [EST]

Answer to Employer Vacation Rules

Right to Vacation

There is no law, federal or state, requiring employers to provide vacation.

The trend over the past 25 years or so has been toward less and less vacation. Although I do not recall the percentage of employees who receive no paid vacation benefits, it is fairly high and growing.

posted Jan 2, 2007 10:33 AM [EST]