New York Employment Legal Questions

The Occupational Safety and Health Act is a federal law which requires reasonably safe workplaces for everyone. Constructive discharge is VERY hard to prove. It means that an employee is forced to quit and that no reasonable employee would have remained and tolerated the workplace, often because the employee is being discriminated or subjected to a hostile work environment. OSHA can be more challenging to prove. Have you spoken to your employer or contacted OSHA if the employer is not interested in discussing the situation with you? Hopefully the employer does not have a legitimate, non-discriminatory reason to fire you. If you had reason to believe that you are a whistleblower, your facts unclear in that regard, the employer could not retaliate against you. But if the employer has other valid, legitimate reasons to let you go those could deny you unemployment since gross misconduct and quitting are usually unemployment benefits disqualifiers. If you don't already have a job lined up, start looking, and definitely speak with several employment lawyers before you take any action. Your facts are not specific enough to support any type of action based on your disclosures herein. You need to speak with employment lawyers before doing anything. Good luck.  ... Read More

Is there a provision within your agreement that if you resign with good cause that you will not be required to repay a bonus, advance or whatever else your employer calls the money? It appears that we're you fired for good cause, presumably defined within your agreement, that you would be responsible for repayment. Parties are free to enter into agreements. No lawyer can provide you with advice or an opinion you can rely upon without reviewing all documents you may have signed or which were incorporated by reference into the agreement from which you extracted what may or may not control your contractual duties or obligations. If the amount in controversy is substantial pay an employment lawyer to review all documents. Many of us have been doing so remotely for clients for years. Read lawyer reviews online to decide for yourself. Remember that the last sentence you provided with what appears might be prevailing party attorney fees could be multiple times the amount you are considering whether to repay. Good luck!... Read More

It's hard to predict that because judges' schedules determine dates. I am without knowledge regarding how you were discriminated but it's important to consider that "retirement" will not help wage loss damages calculations. A number of years ago a general practice lawyer, with about 40 years of experience, called me. He had failed to advise his client that it was imperative to keep looking for work and to keep a detailed log of every job a terminated employee applied for and was rejected after the "discriminatory" job loss. Mitigation of damages is key for all terminated employees. Remember that the courts tell us that employment discrimination damage awards are not a lottery ticket. What the courts mean is that every discriminated employee must prove the damages she or he has suffered. And the first prong of calculating damages is to examine past wage loss. For any period of time in which an employee was not seeking alternate employment many courts, if not all, may conclude that an employee did not mitigate damages and therefore will not award based on wage loss. During this pandemic I have personal knowledge of an employee who was reluctant to leave their job because they were of advancing age. They were certain that no one would hire them given their age. But as fate would have it, an employer from a far away state was willing to give them a remote job, working from home, earning more money than they earned from their prior employer. And with technology those possibilities are ones which I have heard about over and over again. I have spoken with and represented employees earning $500,000 as well as $50,000 pre-pandemic. And these employees have landed out-of-state positions, working from home here in New York, without ever leaving their residences, to interview, get hired, and perform jobs from home. Speak with your NYS DHR lawyer about mitigation of damages and what your best case scenario outcome might be if you failed to mitigate. My employment law reality check videos on YouTube suggest calling many employment lawyers for good reason. The Division of Human Rights does great things. But when pre-hearing conferences or settlement opportunities go nowhere sometimes it's because one or both sides have not deeply examined their positions or expectations. The judges who conduct those conferences are not ones who will hear your case. But they have witnessed hundreds or more complainants with very good lawyers lose those hearings more often than win them. Read the decisions. Both sides must be realistic about resolution. Take a look at decisions or orders of the New York State Division of Human Rights, paying special attention to the percentage of complainants who win at hearing, as well as the dollar amounts of awards. Google it. Those decisions, posted on-line, are valuable. Stay healthy and good luck. ... Read More

Everyone is entitled to be paid their wages or salary earned. Some employees have written agreements while others rely on verbal or handshake deals. Either one is valid although the verbal or handshake one is much harder to prove without witnesses or other evidence to support the pay rate. It looks like the pay rate had nothing to do with your quitting. By that, I mean, that the employer was paying you 700 weekly before you quit. In that scenario it should be much easier to prove that your agreement, regardless of whether it was put in writing or just verbal, and regardless of whether you agreed to work for a specific time period or were like most "at will" employed, should be enforceable. It also looks like you will potentially be filing a lawsuit in small claims court. The county small claims court clerk should be able to provide you with forms to help draft the complaint. The county where you performed services or where you live are the clerks you should contact. Before you start filing lawsuits you might consider a certified or registered letter to your former employer. This is not legal advice but the letter might read soemthing like this: Dear former employer, I worked until X date. Before then I informed you that I was "leaving". I had been paid X dollars a week before I resigned. My last paycheck was only for Y dollars (see attached). I should have been paid Z dollars instead (see copies of emails, texts contracts attached showing the higher rate). There was no policy or contract which I am aware of that required me to do anything before I resigned. I did not sign any authorization that you could deduct anything from my final paycheck except the normal deductions for taxes, etc... that you had been taking out all along. You owe me AA dollars plus interest, my costs of filing suit if I have to plus whatever else a court awards. I look forward to receiving BB dollars from you at CC address by DD date or I will have to pursue formal legal action. Sincerely, your name. Then when you file in court the above plus attachments will essentially be your lawsuit plus whatever the clerk suggests you add. Keep the signed return green card from the post office proving that your employer received your demand letter plus copies of the letter, receipts, attachments. Good luck. You should get paid. Small Claims Court.... Read More

I believe you asked this same question on AVVO. I tried to provide some suggestions on that site. Apply honestly and if you are even considering opening your own business or conducting business as an independent contractor on-line make sure you ask New York State's Department of Labor before doing so. Were you to engage in or launch your own business before requesting or informing DOL that you intend to do so, that oversight usually results in a denial of benefits. Request permission before applying for unemployment benefits. Call some employment lawyers who have handled unemployment appeals during COVID, which I have not had the time to do. ... Read More

Although noncompetition agreements are not, generally, favorably viewed, courts do enforce them when necessary. Remember that an agreement is an agreement even if one side gets a bad deal. They use a balancing analysis to determine the impact on an employee's ability to work versus the investment, resources, contacts, training and other factors the employer invested and might unfairly lose. No one can answer your question with the sparse facts you provided. Rather than risk a cease and desist letter, possibly an injunction, you would best be servied by calling employment lawyers. Many will gladly speak with you on the phone for a few minutes. And probably most will agree to read and make suggestions on the actual restrictive covenant, employment offer letter, empoyer policies, other documents such as job descriptions which might be necessary for a flat fee. It's much cheaper to go that route than to lose 2 jobs. The one you quit and the new one which is potentially told about the restriction and lets you go for non-disclosure of the restriction.... Read More

Objective observations of articulable symptoms of impairment. Just smelling is not enough. Just observing bloodshot eyes is not enough. It really depends on how he or others observed you performing your duties. And maybe your supervisor only noticed you make an error or mistake and required a drug test. An employer is unlikely to argue smell prompted testing. Your best test of whether you did not commit gross negligence will probably be when you apply for unemployment. Almost anyone qualifies for unemployment in New York so if you are denied that will speak volumes about any potential discrimination claim which you have not referenced. Employers can and do make mistakes and unless they discriminate by doing so, what's the cause of action?  You might be protected if you were once addicted to drugs or alcohol, were in rehabilitation and no longer abused drugs or alcohol, and you were fired. Or maybe your supervisor thought you were under the influence, sent you for testing based solely on his smelling marijuana, and your test produced a false positive, and your performance was not impaired with or without testing, you might have a claim. You state that you used to do the night time shift with him and it wasn't an issue because almost everybody smokes weed. Assuming that was before marijuana legalization how would that help? Employers can change policies or change how they enforce policies as long as everyone is treated similarly. If you were driving 85 mph down the interstate and were pulled over could you argue that 10 cars just passed you going more that 85 so the cop should have pulled them or everyone over? You drove the car a cop thought "I have enough on this guy to uphold a ticket" and only you were pulled over, so how does that argument work? When everyone violates a presumed policy against impairment at work everyone has to work without fault to avoid discipline, erst the first person who is observed performing below "standards" may lose their job even when others unseen performed worse. The employee must have facts which support a plausible theory of discrimination. Having your manager know you smoke weed anywhere is never a good thing, legal or not. Sharing personal information at work often causes bad outcomes. See this link: https://www.jdsupra.com/legalnews/nysdol-issues-guidance-regarding-the-9960323/ ... Read More

Maybe. It's tough to say for sure. Any time you have a situation where an employee is not following a manager's instruction the manager should follow the procedure in the employer's handbook or employee policies. Often that involves a verbal or written notice, suspension, possibly termination. If you verbally warned the employee, maybe writing them up would have been the next step. Most employers are not excited about calling the police unless it looks like safety is an issue. A guess would be that this employee might have a history of being problematic. Some employees need to be removed or suspended when it looks like they might get out of control. It's hard to say whether you should have called the police first. The employer may allege that you did not follow its policies or the handbook. It looks like you may have acted reasonably but that might not support discrimination. You know the hardest part of our jobs? Tellling employees that: 1) If they have no written employment agreement like a union contract or a private employment contract AND 2) The terminated employee has no facts to support a plausible (not just a guess or a hunch) theory of discrimination, unless is unpaid wages, we often cannot help. Courts are not super personnel boards. That means that a court will not come in and tell a poorly managed company how to run its business. Sometimes a company has no idea who was at fault and it just fires everyone. That's not necessarily illegal unless an employee has evidence of some form of discrimination against recovering addicts, persons with disabiliites, or other protected classes of employees. You should recover unemployment benefits unless you committed gross misconduct. If you touched the employee first, even if he taunted you to do so, that might be gross misconduct and benefits recovery questionable. Keep looking for another job. All employees have duties to mitigate or find new work and you are in an industry that needs skilled managers and employees.... Read More

No one can force you to sign anything. But without a contract or policy severance is not required of any employer. So if your employer pays you lawful consideration, which can be almost anything, you may be giving up rights to challenge agreements which otherwise might not be enforceable. No lawyer can advise you on noncompetition provisions without knowing much more about what you do, who you do it for, and by reviewing the terms of the agreement you might sign. One thing that is almost certain is that in most cases employees have 7 days to rescind or revoke a signed agreement. In most cases employees have 21 days to review severance provisions, at least in New York, plus another 7 days to decide not to accept the terms. Your best option would be to pay an employment lawyer to review the agreement before you sign it. Today, many of us do so for flat rates and we do that for clients statewide. Seeing a lawyer in person is becoming more rare for many of us. Good luck. Retain an employment lawyer is your best option before signing. ... Read More

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 More

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 More

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 More

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 More

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 More

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 More

Depending on the context employers may ask for information about that the health or medical history of an employee. In general, if the request is reasonable and is based on the particularities of the position of the employee to assure security (for instance considering the covid19 current crisis) there is nothing illegal in asking for information about the health of the employee. ... Read More

Did the EEOC mail you a Notice of Right to Sue letter? If so, you have no more than 90 days to file a lawsuit. 90 days will fly by. Call and speak to many employment lawyers immediately. If you fail to file a complaint within the 90-day period, that will mean that you waived good-bye to your right to do so. Almost no excuse overcomes missing the filing deadline. Essentially no one can help you then.  ... Read More

If you comply with the requirements of the DOL to receive benefits or unemployment support, the fact that you opened an LLC does not make you automatically ineligible. However, if you are doing business through the LLC and getting income, you may not be eligible anymore. It is uncertain if the DOL will know about your LLC, but once you complete your taxes your information will be accessible by different entities. ... Read More

Maybe. The facts leading up to your inpatient treatment are important. If you voluntarily checked yourself in before you did something which would have justified your termination is much different than your employer giving you a chance to check yourself in after it discovered that you abused drugs or alcohol which abuse was affecting your job performance. Two very different scenarios. The law is not that persons who are addicted to drugs or alcohol are entitled to one "keep your job even if you are still addicted to drugs or alcohol". To be protected by laws you have to no longer abuse drugs or alcohol which means no longer being addicted. The recovery process is lifelong and if you do not remain recovering there is no protection.  So how you would up in a treatment program is critical. If your employer forced you into the program which no employer can do then no employer would have been obligated to keep you on its payroll either. The ADAAA protects employees who are recovering, meaning that they no longer abuse drugs or alcohol or entered programs of their own choice before anything adverse or potentially adverse happened at work. If your employer was the one which "forced" you into treatment then it did not have to keep your job open either but apparently decided to do so for other reasons. As long as you know that your employment is "at will" unless you have a union or private contract, then you probably know that no reason is a good reason to let you go. Most employees need no reason to lose their jobs. Perfectly able and competent employees lose jobs every day for no reason at all. And that is not illegal. So you have to be the one to decide whether to comply with any requests of your employer if you are like most, "at will" employed. It does not sound like you are in denial. You acknowledge your issue. Recovery is lifelong for most. Maybe the employer knows best since it has observed you, sees good qualities, but might not give you any more chances after this? Maybe it really wants to help you? Maybe you really want to keep this job? It's a free country. Employers fire employees every day with no notice and no reason. And employees quit their jobs every day with no notice and no reason. You are the only one who knows whether now is the time to move on.... Read More

New York unemployment insurance in April of 2020? It is necessary to conduct a job search in order to receive unemployment benefits. Furlough has no particular legal meaning. An employer might take you back or it might not. Anyone who is placed on furlough should assume that they may never go back. Therefore, searching for alternate employment is always the best idea effective the day after anyone goes on "furlough". Even if you believed that you were discriminated against, you would have an affirmative duty to mitigate your damages. That would mean that from April of last year you would have been looking for other work. Remember, that you only have 1 year from the date of an adverse employment action to file a claim for discrimination. Your facts do not reference any type of discrimination. But were there discrimination, you should assume that the last day you worked, April of last year, was your adverse employment action date. That means the date you were terminated. So, if you had a plausible theory that your employer's actions related to your career, were motivated by some discriminatory animus, having seen nothing of the sort in your facts, your latest or Statute of Limitations date for filing a discrimination complaint with the New York State Division of Human Rights is probably some date in April. Your last day of work for this employer. Best suggestions. Look for work immediately since it appears that you may not be returning to this employer.  And, if there was discriminatory animus, or if your termination was motivated by your belonging to one or more protected classes of employees (for example, they thought you were too old, or too sick, or too religious, or the wrong race, color, national origin, gender, sexual orientation, or other protected classes of employees to which you may belong?) you probably only have 1 year from your last day of work in April (whatever that date was minus a day or 2) to file a formal complaint with the New York State Division of Human Rights. Unless you are owed unpaid wages, filing in State Supreme Court, without exhausting the administragtive remedies courtesy of our State Division of Human Rights, would not be my choice. Good luck.... Read More

For the best suggestions contact a debtor and creditor lawyer or one who handles collections. Those legal professionals can assist you regarding the payment or collection of debts. Everything begins with the agreement or the contract. If written, the entire document needs to be reviewed. If verbal, the specific details regarding the agreement in light of New York's Labor Laws must be considered. Deductions from paychecks are limited to certain types of expenses. Contracts unrelated to work duties and responsibilities are separate.... Read More

Don't be so sure that physical injury damages are non-taxable. It's not that simple. Speak with a tax lawyer or a certified public accountant about your specific facts and how much money was spent on medical expenses directly related to the claim before deciding. Unless one of these tax experts confirms that a portion is non-taxable assume that all of it is taxable. Most employment law settlement proceeds are taxable. It's rare for it not to be.... Read More