Answers Posted By David M. Lira

Answer to Problem with my private employer

Payment of Wages

Under New York State law, employers are required to pay wages promptly. I beleive the law says wages have to be paid within 15 days after the end of the pay period.

If an employer fails to pay, you can file a complaint with the New York State Department of Labor. You can also go to court.

An employer might be required to pay a premium above the amount owed ("liquidated damages") of 25 percent of the amount owed. In addition, the employer might have to pay the employee's attorney's fees.

posted Dec 15, 2006 07:44 AM [EST]

Answer to Use of business emails after resigning without signing a non competition clause

Protecting Business Databases

In a sense, employers do not need non-compete agreements to protect legitimate business interests. Former employees, for example, have no right to "borrow" a secret formula for a successful product. An employer would certainly be able to go to court to prevent the former employee from using its own secret formula against it. In a situation here is not so much competition from a former employee as it is protect the investment that the employer made in developing the formula.

Exactly what an employer can protect is hard to describe in general terms, because it all depends on the industry and what the employer seeks to protect. (If you seek advise on your specific situation, you need to set up a consultation with an attorney.) Generally speaking, however, an employer has a right to protection from the appropriate of its business databases, including customer or client lists, provided that the database is truly unique or proprietary. If, for example, a list of potential clients could easily be reconstructed from an industry directory, an employer would have a hard time protecting a customer list that is more or less the same as the listings in the industry directory.

posted Oct 26, 2006 08:47 AM [EST]

Answer to Severance, termination and discrimination

Making a Preliminary Evaluation of a Case

One of the biggest problems with employment discrimination cases is that employees often don't have the evidence needed to prove their cases, but their employers might. So, attorneys handling discrimination cases often have to make a leap of faith in accepting a case.

Another big problem with discrimination claims is that discrimination claims require the proof of intent. That is, you need to prove, for example, that you were denied an opportunity to find a new job in another department because the person making the decision to deny you that benefit did so because of that person's opinions about Jews. Whenever you have to prove intent, you are basically required to climb into someone's head to prove what they are thinking. That is a very hard thing to do.

There is also a distinction between establishing a claim of discrimination, and having evidence of discrimination. The fact that you were the only Jew in the department might be considered to be evidence of discrimination, but that fact alone does not establish discrimination. If that were all there is, you would likely lose a discrimination claim.

Whenever someone asks me to consider their case, the basic question I ask is: What causes you to believe their is discrimination here? How were you treated differently? Is there anything that you were excluded from? Is their anything that you were required to do that was not normally required of anyone else? What was said? What was done? And, remember, little things might say a lot when you're talking about a possible discrimination claim.

posted Oct 16, 2006 11:35 AM [EST]

Answer to employer stealing from my paycheck

Deductions from Pay

New York State law greatly restricts the deductions that can be taken from an employee's paycheck. Essentially, only two types of deductions are allowed: those required by law or order of court (such as for income taxes and garnishments) and those to which the employee consents.

Unlawful deductions can be recovered either with the aide of the New York State Department of Labor, or through a lawsuit. If the amount is small enough, you could even go through Small Claims Court.

posted Sep 27, 2006 09:35 AM [EST]

Answer to Unpaid Commission and salary vs. hourly

Commissioned or Non-Exempt

Your query raises a number of issues, the firts of which is whether you are a commissioned salesperson. Commissioned sales people are an exception to the general rule that employees are to be paid on an hourly basis. Whether you are really a commissioned sales person will depend on the terms of your employment, including the precise wording of any written agreement you may have entered into.

Next: If you have a commission agreement, commissions get special protection under New York State law, in a way similar to wages. The issue in your case is whether and when your employer changed the terms of your employment. Your written agreement may effect any legal analysis of your situation, but, because I don't have a copy of that agreement in front of me right now, I'll assume it has no application.

Under the employment at will doctrine, an employer can change the terms of your employment at any time, for any reason or no reason at all. So, again ignoring what your commission agreement might otherwise say, your employer can stop paying commissions at any time. You would, however, be entitled to commissions earned at any time before your employer informed you of the change in terms of your employment.

If you are owed commissions, you can sue for payment of those commissions.

Next: You talk about being a salaried/non-exempt employee. From a legal standpoint, this makes no sense whatsover. Non-exempt employees are hourly. Only exempt employees can be paid on a salaried basis.

Next: Even if we were to assume that your duties were such that you were truly an exempt employee, remember being exempt is the exception to the general rule. Employers can easily lose the benefit of having exempt employees if they treat their exempt employees like hourly employees. For example, an exempt employee will be entitled to overtime (for time worked beyond 40 hours in a workweek) if the employer docks employees for being late or leaving early.

Overall, I would suggest that you set up a consultation with a employment attorney to review your situation in detail.

posted Sep 25, 2006 09:41 AM [EST]

Answer to Employer having to pay twice......

Deducting for Losses

New York State law severely limits the circumstances under which an employer can take deductions from employee wages. Generally, an employer may deduct only for what is required by law (such as withholding taxes) or for what an employee consents to.

If an employer believes an employee is improperly appropriating merchandise, the employer can certainly take disciplinary action, including suspension and removal. However, the employer risks violating New York State wage and hour laws if the employer deducts anything from wages earned by an employee.

posted Sep 15, 2006 09:18 AM [EST]

Answer to Can I be docked a vacation/ personal day?

You might be entitled to overtime

The Fair Labor Standards Act creates a kind of presumption that employees are generally entitled to time-and-a-half for hours worked in a workweek beyond 40 hours. An employee will lose the right to overtime only if the employee falls into an exception (exemption) to the general rule. The exemptions are to be read narrowly, and, if the employer fails to strictly comply with the requirements of the exemption, the employee becomes entitled to overtime.

Although an employer can have exempt employees report their hours (for a variety of reasons including billing), one of the requirements that an employer generally has to follow in order to maintain the exempt status of exempt employees is not dock exempt employees for arriving late or leaving early. Genrally, exempt employees should not be docked for increments of less than one day. Exempt employees can be docked for taking whole days, as when they are sick or on vacation.

If an employee, who would otherwise clearly be in an exempt position, is docked in increments of less than one day, that employee may well be entitled to overtime, and the employee might be able to sue the employer for unpaid overtime. Although the FLSA would allow you to collect only 2 years of back overtime, under New York State law, you can go back as much as 6 years.

posted Sep 5, 2006 10:15 AM [EST]

Answer to Diagnos. with cancer worked thru chemo took a 2mo. disability w/radtion hours & benefits cut

Discrimination vs. Family Leave

Your question may leave out a lot of critical facts. Because of this, you should not take anything I say here as gospel. You need to meet with an attorney to thoroughly go over the facts of your case.

But I would certainly say that your fact situation presents a choice between a handicap discrimination claim, and a Medical leave claim. (Incidentally, there is no such thing as "medical discrimination.") If given a choice, I would go with a Medical leave claim.

You can pursue a handicap discriminatin claim in New York under either federal or state law. The definition of "handicap" under federal law, the Americans with Disabilities Act, is, however, narrow. So, narrow that I would immediately have doubts about whether you (actually, your daughter) would be covered. The fact is that people bring discrimination cases under the federal law lose more than 90 percent of the time, usually because their disabilities are not considered handicaps under federal law.

Under New York State law, the Human Rights Law, any diagnosed condition is considered a handicap. THus, you should be covered under state law.

But here is the problem with any discrimination claim: To win a discrimination claim you have to prove intent. That is, you need to show that the motivation for the employer doing what the employer did is the protected characteristic. In other words, you need to show that the employer cut hours because of the handicap (or because of a person's race, national origin, gender, etc.).

Proving intent basically requires you to climb into somebody's head. That is hard to do, and that is why discrimination claims are so difficult to prove.

Now, contrast this with a claim under the Family and Medical Leave Act, another federal law. THe key point about FMLA is that it requires employers to provide up to 12 weeks of unpaid leave to deal with a serious health condition. The leave can be taken all at once, or intermittently. You can take a day here and a day there. You can take a part of a day here and there.

During this 12 weeks of leave, the employer cannot terminate you or take any other adverse action. You are suppose to remain in your job, with any changes in pay, hours or benefits.

The nice thing about FMLA is that there is no need to prove intent, in most cases. You are entitled to leave. You took leave. The employer failed to give back your job at the end of your leave. You've proven a violation. No need to show what motivated the employer.

posted Aug 28, 2006 09:05 AM [EST]

Answer to severance package rights in case of quitting

The Right to Severance?

In New York State, there is no right to severance pay. It doesn't matter whether the employee leaves voluntarily or involuntarily.

You may have a right to severance if your employer has a program or policy of providing for severance. But your right would depend on what the policy or practice is.

However, whether you leave voluntarily or involuntarily, you are entitled to the payment of wages you have earned but have not yet received. Your are also entitled to the payment of earned leave. Vacation is usually considered earned, but sick leave is not. So, you should get a check for used vacation leave, but in most cases you'll lose unused sick time.

posted Aug 22, 2006 1:27 PM [EST]

Answer to Commissions and Parole Agreements

Is there a contract?

In law school, students typically learn about the problem of duelling forms, the situation where two parties keep sending each other forms with slightly differing terms. Students are taught about the duelling forms because it points out the difficulty that sometimes exists in determining whether the parties have entered into a contract.

Generally, there is no contract until the parties of expressed an intention to be bound by the terms of an agreement. Usually, that happens when the parties sign a paper. Sometimes, it might be expressed by actions.

I don't know whether you have a binding agreement. I would need to know more.

I can tell you this: if you don't have a provable agreement, you are an employee at will, subject to whatever terms the employer decides to apply, whenever the employer decides to apply them.

But note, pay and salary are generally accorded special protection under both federal and state law. These protections come from statutes, not case law. Pay and salary would include commissions. Generally, if you have earned your pay, it cannot be taken away from you.

posted Aug 22, 2006 09:53 AM [EST]