Employment Legal Questions

The mandate is completely legal.  Your GF has the option of getting the vaccine or being subject to regular tests.  This is a public safety issue.  The vaccine has been approved by the FDA.  The vaccine is safe.  If she does not want the vaccine, she can be tested or find another job.  Very simple. ... Read Answer

Yes, you most likely have a claim against the restaurant for negligent hiring retention and supervision. The employer will be vicariously liable for your damages caused by the employees assault if that assault occurred during the course and scope of his employment. You should discuss the details of your injury with counsel for possible contingency fee representation.... Read Answer

If, as you say, you are not bound by any non-comepte agreement, and did not sell any part of this business to your current employer (in which case a non-compete can be imposed by law) you have every right to compete with your former employer.  HOWEVER, you can't use any trade secrrets or proprietary information you learned in your employment.  For example, if you know how much your current employer is bidding on a proposal and use that knowledge to undercut the bid and get the job, that would probably be considered unfair competition.  Things like customer lists, costing and markup information, etc can be considered trade secrets depending on whether you learned it in the course of your employment, how much time and money was spent by your employer to acquire that knowledge, the extent to which that knowledge is not publicly available, and the extent to which your employer takes care to keep the information secredt.   As for trying to circumvent your obligaqtions through the subterfuge of using somebody else's name, you can't do indirectly what you are prohibited from doing directly, and if you're caught you will look worse.... Read Answer

A Cease and Desist Letter from an attorney can request that an individual stop a specified action and refrain from doing it in the future, with a threat of legal action if the receipient fails to comply. Often times such a letter can resolves issues without having to file expense lawsuits. The law office of Omid John P.A. writes demand letters with individualized attention to meet client needs.  ... Read Answer

Based on the information you provided, the statute of limitations may have expired on any claims you have. If you were to pursue this, you can sue them in the US (California) and the courts will sort out of that is the proper venue.  However, you need to speak with an attorney and get advice on whether you have a viable claim.   Good luck!... Read Answer

You quit your job and thus no longer have rights as it relates to any stress the job may have caused you.  There is notihng left for you to do.  You cannot file a worker's comp claim as you're no longer employed there.  Not sure how you plan to return to work for a job you quit over a year ago. Good luck.  ... Read Answer

You state that you "disagree with what the law says about employees who work 40 hours in a work week." Not sure what your disagreement entails. I have successfully respresented salaried employees who were improperly classified as exempt from overtime. We successfully disagreed that these employees' duties lacked sufficient discretion and independent judgment to qualify as exempt under the administrative exemption. I have also successfully represented salaried professional employees who did not actually use their professional licenses nor was professional education a prerequisite to hold their positions and successfully recovered unpaid overtime for such improperly salaried "professional" employees. I have also successfully represented employees whose employers failed to designate regular workweeks making it impossible to determine how many overtime hours those employees actually worked and recovered unpaid overtime for such employees. But none of those claims were frivolous or vexatious. Why? Because each one was supported by documentation from several sources including pay stubs, handbooks, emails, texts, memos, etc..., not to mention extensive legal research for each claim. Filing or pursuing a lawsuit on a hunch or suspicion is never recommended. Those can result in assessments of fees or costs or even sanctions against attorneys. At the very least a lawsuit not supported by a plausible theory, including caselaw, can cost filing fees and service of process costs if the claim is summarily dismissed. Best option would be to retain an employment lawyer to make sure your "disagreement" is supported by a good faith legal argument. We all see what happens to even lawyers who choose not to do so.... Read Answer

OK I believe what you're asking is that this individual who sent you a demand letter is demanding money from a lost business opportunity because she contracted Covid Because you exposed her to the virus without any kind of warning that you had it, and therefore she feels that you are responsible for her business losses because of her health condition? OK if this is the case, she would have to still prove that she contracted Covid from your store or restaurant, and that she has to prove that there's no other store or other individual who She contracted the virus from. This is the issue of proximate causation and is part of every civil lawsuit that is brought in court. It is a very high hurdle, because she could've contracted that anywhere. So I think that this is a laughable case, and you should retain counsel and write her back stating that if you file a lawsuit against me I will file a malicious prosecution suit against you wants to court throws your case out of court. ... Read Answer

You are a1099 'independent contractor' and this gives you far less rights. The potential customer said you had been drinking and were intoxicated. Uber made the decision to believe the customer. This is similar to saying that you will not use the plumber a second time to fix your sink. You have no obligation to use the plumber.  You have the right to support your position with evidence including testimony and video records. I would recommend placing all the supporting evidence on the 'written record' so that there is a positive record. Uber has no obligation to accept the record or to give you a 'hearing'. However, you would have the record for the possibility of new contractual employment with Uber. Please call if we can help. Ed Dimon, Esq..... Read Answer

You should work closely with and provide written documentation to NJ Unemployment personnel. Be extremely detailed and specific and provide too much documentation. How long will you be out of the country ? A short time will present no issues.  Please call if you have any issues. Ed Dimon, Esq. 732-797-1600 ... Read Answer

Maybe. Are you disabled? If yes, have you requested a reasonable accommodation? Remember that many, many people suffer with depression and anxiety so those conditions, by themselves, might not qualify as disabilities if they can be controlled with medication, therapy, etc... If you do suffer with at least one disability, meaning that even with medical treatment you still need the employer to help you with a reasonable accommodation, would you be able to perform your prior position's essential functions with or without accommodations? If yes, have you and your employer discussed possible accommodations which will not create an undue hardship for your employer? Were your suggestions supported by a medical provider? Your exact job duties are critical. Has your employer been kept in the loop about when you expected to return to work? Do you have some way to prove that you kept them in the loop and discussed returning to work? Your cell phone records showing all the calls you made to your employer might be enough. Who brought up the reduced work hours? What was the reason given for those reduced work hours? Why are you being moved to another location? Have others been moved also? How is the business doing in general? Does the employer have a legitimate, non-discriminatory reason for doing what it intends to do? You have to decide whether you can easily land another job and want to let this one go? Remember that every employee has a duty to mitigate damages. Take that into consideration no matter what you decide. It's always easier to land another job while you are still employed. Best choice might be to return to work, take notes, see how it goes, and decide whether you can still work at this organization? It depends on what you do and what you have tried to keep doing and how you went about it. There is no absolute yes or no answer. It all depends on the facts. Make sure you have documented, with notes taken, your facts. Dates, times, persons spoken to, what was discussed, when, witnesses, what was requested, what was their response, etc.... This is a long, complicated process with or without a lawyer. Not legal advice. No lawyer client relationship. Retain a lawyer if you think you need one. Good luck.... Read Answer

You are in a diffcult position. You may be able to use the 'illegal behavior' of the employer to your benefit in obtaining employment with the employer. You will not be able to use this behavior in court because you were an 'accomplice' in that you knew of the illegal weight. Please let us know if we can help you in court. Ed Dimon, Esq. 732-797-1600 ext 235... Read Answer

If you feel that you have been fired and retaliated against based upon racial comments and discrimination based on skin color or national origin etc., then you can file a complaint with the EEOC, and they will do an investigation and give you a right to sue letter within six months to a year.... Read Answer

You are definitely on the right track here. Being an independent business (either as a sole proprietor or partnership, or as a corporation or limited liability company) is an important factor in determining whether your business is really an independent contractor. If you choose to be an independent contractor, you can control the factors that would be used to determine whether you are an independent contractor. 1. Make your business "official" -- get a business license from your locality (city or county). Yes, it's a hassle, but it helps show that you are an independent business. This is true whether your business is a sole proprietorship, partnership, corporation, or LLC. Talk to your accountant and bookkeeper, as well as an attorney (if necessary), to see what would work best for you.  2. Have bank accounts in the name of the business, separate from your personal accounts, and make sure that proper bookkeeping is done for the business. Treat your business as a separate entity. If you withdraw cash from a business account for your personal needs, make sure that you treat that properly -- either as income, or perhaps as repayment of a loan you made to the business.  3. Have written contracts with your customers or clients.  Written contracts are good to show that your business is an independent business. You can write in the "ABC" test requirements into the contract, and that will go a long way to showing that you are a business. The contract can state that: A.  your business is responsible for getting the work done, and has the general right to determine how it is done; B. the work that your business will do is sufficiently different from the work of your client; and C. that your business customarily does this kind of work for other clients as well as this particular client.    ... Read Answer

Nurse practitioners have the education, training, licensure, and skills to be independent contractors and in business for themselves. Other nurses might qualify as exempt from overtime and might be compensated as salaried employees. But CNA's are almost certainly employees who must be paid overtime. The key issue is "control". Does the nurse decide how, when, and where to work, are they truly in business for themselves, operating under their own business names and business accounts, often performing services for multiple clients or patients at more than one location which is probably not in the healthcare industry itself. This is not an exhaustive analysis nor conclusive. The employee / independent contractor analysis will be slightly different depending on which government agency is doing the evaluation. Everything might run smoothly until a nurse is injured on the job, requires disability insurance benefits, or files for unemployment compensation benefits. Those events often trigger audits with hearings, penalties, interest, and fee assessments. Keeping track of every employee's work hours is critical. Regardless of whether a person is paid by the hour, day, week, or job, work hours should always be tracked and records maintained. Unpaid overtime or wage claims can be among the most lucrative employment claims to make. Liquidated damages and payment of the prosecuting attorneys' fees are among the available remedies including individual liability. Anyone with authority over hiring, firing, compensation, or benefits should beware of their personal exposure.... Read Answer

Laws are prospective. They apply from an effective date into the future. It is very rare for a law to be applied retroactively, meaning in hindsight. Have you re-applied for the job you lost? Complete the employment application honestly. Make a copy. Sometimes the questions asked on employment applications are illegal. Some questions may be allowed only after a conditional offer of employment is made to you. If you are not re-hired and are now the most qualified applicant, this employer's refusal to hire you might be illegal if it perceives you as disabled or impaired and you are not. Remember that your specific job duties will determine whether you can perform the essential functions of your job while medicating with marijuana. Like other prescription pain medication, you may not be able to successfully perform the essential functions of your job wit marijuana in your system. Regardless of what your prescription pain medication is, they all remain in your system for some time and many impair functioning while medicated. There may be some jobs where marijuana could be used on-the-job but that will depend on your actual job duties and the position you hold. If you were a surgeon I doubt that the Department of Education or Board of Medicine would permit a surgeon to be under the influence of marijuana (prescription or otherwise) during surgery or before performing surgery. The jobs which allow use may be more limited than we think regardless of whether tests can accurately detect use. Remember that unless your union requires a positive test result before an employee/member's termination, an employer suspecting an employee's performance-altering medicinal use can fire the employee not because the employee is medicating, but because the employee's performance is below the employer's standards, test or no test. Positive tests for drugs or alcohol were rarely necessary to fire employees, even before the law changed. The legality of marijuana use may prevent criminal prosecution of employees in most cases. But if you operate a 70,000 pound tractor trailer on the public highways running 70 mph and your employer watches you consume medicinal marijuana before you jump into your tractor for a cross-country run, and soon after crash into passenger cars causing fatalities, might you and your employer face gross negligence liability and even vehicular homicide charges in criminal court, regardless of whether marijuana is legal in New York?  ... Read Answer

Maybe. Each noncompetition agreement is unique. Although New York will not restrict an employee's ability to earn a living it will protect the legitimate business interests of an enterprise as well. Balancing tests are applied. Economic realities are considered. Is an employee unfairly using information which it acquired from a prior employer to harm the prior employer or the help the new employer unfairly? There is  no absolute answer. The language of the restriction must be analyzed and followed.... Read Answer

Noncompetition covenants or clauses vary from employer to employer. Some are highly specific. Others are very general. Courts will enforce them to protect either side. New York uses a balanced approach. Are the restrictions reasonable given the job, industry, geographic area, duration of time restricted? No lawyer can opine regarding whether any one contract or clause is reasonable without reviewing the entire agreement, policy, restriction, handbook, or any other document which might be tied to the restriction. Some covenants apply laws from other states. They are generally enforceable. But there are states with public policies which are truly obnoxious to New York's and might not be enforced. The best thing to do is to see whether an employer insists that a prospective employee sign the agreement. Then request some time to read and review the agreement, meaning paying an employment lawyer to actually read and make some notations on the agreement before signing. Signing is a bargain. An employee agrees to be compensated in exchange for agreeing not to compete with the employer if they leave. Of course, the terms or conditions of departure will likely be relevant to enforceability. Courts are leaning towards enforcing agreements between parties. Agreements between employers and employees. Therefore, a wise employee will request an employment lawyer to review any agreement before signing. That way, the prospective employee understands the risks they assume if things don't work out.  Employees can face some real challenges, especially highly compensated ones or those with entrepreneurial spirits, if they sign an agreement and determine the job is not a good fit. Good luck.... Read Answer