New York Employment Legal Questions

Unions negotiate contracts on behalf of all of their members. Unions must follow the language they negotiate on behalf of their members. Union agreements or contracts are called collective bargaining agreements. They are enforceable contracts. The primary difference between a collective agreement and a private employment agreement is that the former covers many employees as opposed to a single worker with an employment contract. Union contracts or agreements are overseen by the National Labor Relations Board for private unions. If your union is not following the terms of its agreement or engaging in some type of unfair labor practice you may reach out to the NLRB here: Frequently Asked Questions - NLRB | National Labor Relations Board You are not the only union employee experiencing issues at the present time. You should receive more attention now that the administration in D.C. has changed. Although you may have to exercise patience as the new administration will likely re-align the Board. You may want to point out that you were essentially working at minimum wage rates with this union which seems a little odd. Hopefully your benefits package is very generous otherwise, why have a union at all?... Read More

Were you covered by a collective bargaining agreement? If so, what does that agreement say, in writing, about pay increases and entitlement to members of your union? If not, were you promised an increase in writing? If so, what were the terms of the agreement and why did you decide to leave? Did your supervisor tell you about the pay increase in an effort to entice you to stay? And you left anyway? It's hard to say for sure but you have to answer the question regarding why you left? Was it because the pay raise was not enough? Unless the above cover you what argument would you have that you should receive an increase if it was only finally approved after you left?... Read More

It looks like you were a valued employee. Did you receive retirement benefits, pension, 401K, ERISA covered compensation? If so, were you provided with an SPD, Summary Plan Description?  You might have a claim. You should retain an employment lawyer to review your entire agreement, benefits, SPD, employee handbook, etc... A number of years ago I helped a client with severance after an employer claimed that service was not continuous. There were other facts in that scenario but we were able to successfully get the employee very close to the maximum amount of severance. Severance agreements should always be reviewed by legal counsel. And most of us do that for flat or fixed fees depending on what the goal of the review is. It looks like that might help you. Call some employment lawyers before you sign anything. You should be given ample time to do so by law.... Read More

An offer letter is not a contract. Do you have a term contract? Employment for some period of time? Is the car requirement mentioned in the offer letter? Or in other correspondence? Are they reimbursing expenses for the car or did they have any input regarding car financing, etc...? You should discuss this with some employment lawyers. If you keep working you accept their revised salary probably. If you quit you may or may not receive unemployment benefits. Call some employment lawyers.... Read More

The DOL will apply the law uniformly to everyone. If they claim you were not totally unemployed they either have evidence that you earned money which you did not report or that you worked more than 3 days during a week. For example people who have their own businesses work at least 5 minutes every day so that would be problematic. Also, not telling DOL that you plan to run your own business would also be a problem since they need to know at the time you apply for benefits because otherwise they cannot determine who is or is not earning money on their own. You can call Jacob Korder Esq. who is very well versed in New York unemployment benefits. Here are 2 suggestions either way. #1 Make sure to request a complete file of your claim from the DOL before your hearing. They have evidence that you were not completely unemployed and you will need to cross examine the DOL's witness and submit your own bank statements and other evidence to prove or try to prove what income or earnings you had. #2 Testify honestly. A number of years ago when I had time to do these hearings I represented a highly paid sales person who I never met in person. I did have many many documents including sales logs, employee handbook, pay records etc... Everyone appeared by phone and my client lied. I just about hung up. I knew that he needed to tell the truth and that I could not lead him meaning to give him the answer. I had to repair his testimony without handing him or telling him what document he needed to honestly explain. I did it. Don't ask me how. I was amazed myself. The DOL even audited that transcript to make sure I had not led my own client. The client was ecstatic and thanked me for weeks thereafter.The moral of that story is to tell the truth. If I figured out my own client was lying so will the DOL judge. They have heard it all. They nor I need to see a client testifying to hear the truth. Its not that hard when we've done this for 30 years. So don't lie. Introduce all financial records which might help you. They want to give you benefits if they can so don't make it impossible for then to do so by not telling the truth.... Read More

Have you suggested that you might compete with them? Use the knowledge or contacts you gained unfairly? Trade sexmcrets and confidential information mean what they say. If you don't agree to noncompetition your employer may not keep you. If you are at will they dont even need a reason not to keep you. You might want to find that new job ASAP. If you are considering competing with them consult with an employment lawyer before you do. If you are thinking about signing the noncompetition agreement absolutely pay an employment lawyer to provide an opinion you can rely on.   Many noncompetitions are not enforceable. But the cost to defend one should be incentive enough to obtain a professional opinion just to get some guidance on how to handle or negotiate this.... Read More

If your first severance or dismissal pay is paid out more than 30 days after your separation date then in New York State it will not be considered for purposes of unemployment benefits. Make sure to honestly report all of your earnings or wages or income of any type to the DOL throughout your period of potential benefits and never permit someone else to report for you and do not leave New York while collecting unemployment for example a vacation. The DOL will eventually discover that you did if you do. Tell them before you go and depending on circumstances you may be able to continue collecting. And don't open or launch your own business unless you inform them well before you even think about doing so because that is not an option without prior approval. And pay an employment lawyer to review your noncompete. There might be more things to consider than you think because when you receive severance pay in exchange for even an otherwise unenforceable noncompete you are making a choice to be bound by those otherwise unenforceable terms. Many employees would rather just walk away instead so there must be some reason why you wish to be bound by those very possibly otherwise unenforceable terms? There's really no excuse not to pay some lawyer a flat fee to review them and advise you remotely.... Read More

So every employee could have taken and cashed your paycheck but they did not? You should probably keep an eye on your credit reports and monitor your loan activity or applications for a while. Damages. Every employment case and essentially all other legal claims are based on damages. And you would be the potential plaintiff on whom the burden of proof would lie. 1) Was the plaintiff damaged? 2) if yes what are the plaintiff's damages? 3) How will the plaintiff prove those damages? 4) What other remedies might be available and how much will it cost to pursue them? Employers are not perfect. They make mistakes. All the time. But they and their managers hand out paychecks. Employees who are "at will" work at the mercy of those who pay their wages or salaries. Employers can keep bad managers and fire good employees. The beauty of "at will" employment is that if an employee is not happy at the workplace they can quit. No questions asked. And if an employer is simply tired of seeing an unhappy employee at work every day they can release them from their misery. Not every employer is a good fit. If you are over this one find a new job first, then quit and move on.... Read More

You state that your job offer was rescinded after you left your prior job. As long as you did not leave your prior job before you were offered a new job you should recover unemployment benefits. Unfortunately most employees do not enter written or enforceable "term" contracts of employment. That type of contract is for some specific term of employment. For example, for one year or unless you are fired for good cause. Most employees are "at will" which means that their employers need absolutely no cause at all to fire them. Unions protect all of their collective members with a contract called a collective bargaining agreement and government employees have civil service protection. Most other employees across the entire USA are "at will." No union, no contract. Apply for unemployment benefits honestly and in New York you should be able to collect them. Of course, if the driving record was affecting your prior employment and you were facing potential or actual consequences there that will require finding an unemployment insurance benefits appeals awyer to see whether you can secure benefits assuming you might be denied. Although sometimes, honest applicants squeeze in. Good luck.  ... Read More

You have some options. You can file a complaint with the wage and hour division of the department of labor. You could file for unemployment benefits since no one is obligated to work for free and by not paying you they are essentially firing you. Or you could sue them in small claims court. You might end up doing all three but maybe not at once.   You have to be paid weekly. Many employers are allowed to pay every two weeks. Good luck. It's probably time to look for a new job no matter what happens. In New York you have up to six years to collect unpaid wages.... Read More

Sometimes in the contexts of an employment contract, it is valid to require an employee to sign what is called a non-compete agreement. However, unlike non-compete agreements entered into as part transaction for a transaction for the sale of a business, non-competes in employment contracts are strictly scrutinized by courts. This means, that the agreement may not be enforced if it is unreasonable. Noncompete agreements are contracts or clauses by which one party agrees not to compete with another, in the same economic industry, in a certain geographical area, and for a defined term. Non-competition agreements are not illegal "per se", but they are subject to a careful study by the judge when disputes arise regarding their validity, execution, or compliance. To determine the validity or enforceability of noncompete agreement courts analyze its term of duration, its geographical scope, and the type of activities restricted.... Read More

When a person marries a LPR or a US Citizen, that person is eligible to adjust his/her status, i.e. get a green card. The application process can be completed in two parts. First, sending an I-130 petition for alien relative (to prove eligibility) and then, form I-485 with accompanying documents and forms. During the second part, an applicant sends its I-765 to apply for work authorization and a social security number. Now, once the I-130 petition is approved the applicant can only move forward with the application. This means that at this point there is still no work authorization. That said, it is worth noting that the law understands that a person must work to live, accordingly form I-486 asks if a person has worked without authorization. Now, considering the question, if a person overstayed his/her visa, a waiver of unlawful presence is necessary. Once that waiver has been approved, a petitioner can move to the second part of the petition for a green card. ... Read More

Most employee handbooks are not contracts. Their purpose is to protect employers who may be accused of disparate or unequal treatment of employees. Most employers try to follow the terms of those non-contracts in order to show that they treat all employees the same and that they promote compliance with labor laws. No lawyer may comment on bonus payments without reviewing/reading your particular policy. However, most policies do state that employees need to be on the payroll when bonuses are paid. A bonus, by definition, is discretionary. That means that employers are not mandated to pay bonuses and they often do so to encourage employees to continue working hard. If you decide to inform your employer that you are leaving, you probably should not count on the bonus. But to be sure, you should pay an employment lawyer to review your policy if you truly believe that you were entitled to the bonus payment. If you leave and are not paid the bonus you will likely have to sue the employer in small claims court. You may even need to retain a collecitons attorney if the employer does not pay thereafter.... Read More

Your employer must treat all employees the same. And it must follow CDC guidelines. Please see this link: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws As you can read, the guidelines are subject to change at any time. What many people fail to recognize is that medicine is not an exact science. But that does not mean that we should not listen to the majority views of medical experts. They are trying to keep us safe and not kill people unnecessarily. If you have symptoms of the disease or have travled to high risk places then you should disclose those to your employer and your employer then assumes the risk that you may be contagious to others if there is an outbreak at work. Think of it this way. The governor tries to protect us when we are in public such as getting fuel or at the grocery store. The employer, with GUIDELINES from OSHA and the CDC, interpreted by the EEOC, are responsible for making our workplaces reasonably safe and free from know hazards. Some employers are much more risk taker types which places those employees at greater risk. But that does not mean that they can not take such risks. Such risks are generally not wise but our country does not necessarily prohibit risk taking employers from doing business. Good luck. Hopefully, this answers your questions. What will likely happen after this is done is that employees will need to choose workplaces which have similar philosophies regarding health and safety to their own. It may divide us even more than we are currently divided. It may force some to move from where they have lived their entire lives and to be very selective about where they work. You may simply have to find another job if your current employer is a big risk taker and does not consider potentially better testing worth the effort. Remember, that testing is to make sure that you do not infect others. If others are contagious because they have been inadequately tested that will not protect you even if you wear a mask. Social distancing and mask wearing are mostly to protect others. Excess hand washing and wearing gloves is mostly to protect you.   ... Read More

I just reviewed the Manhattan Community Board 3 sick leave policy. It is very specific. There are prerequisites which must be met. Check on line. You can Google and pull up your employee handbook online. Your sick leave policy will be posted somewhere. Call your HR department and ask someone to explain those benefits to you. A private lawyer may charge you to review and provide an opinion on your policy. Suing for 2 weeks of pay will not likely be cost justified. Why not file a grievance with your employer or union if HR is unable to explain why you apparently are not covered? Take notes of who you speak with and what they tell you.... Read More

I do not understand your question. If the employer is mandating that employees wear face shields then everyone must wear a face shield. That would include anyone you come into contact with. The face covering, whatever it is, is to protect other people. When we wear face protection that means that we care about the health and safety of other people. Wearing a face protection device is not necessarily protecting you as much as it almost certainly protects others. Those who do not do so indicate that their fellow citizens or residents mean nothing to them. If the employer refuses to provide the device then how would an employee know that the device they buy will meet the employer's expectations. Smart employers will list makes and models of devices in their employee handbooks. If other employees do not have to do the same you may have a discrimination claim for filing with the New York State Division of Human Rights. Any employee who has reason to believe discrimination may file a complaint. Good luck.... Read More

Mangers are sometimes but not always exempt from overtime pay. I can't tell you how many times employees would be better off being paid hourly than salaried. Many times an employee only realizes that when they land another job or leave. I assume they pay you a salary. Hopefully you have the discretion and independent judgment needed to be salary exempt. What that means is that if you are called a manager but don't have the discretion and independent judgment to be salary exempt then you are not. With a decent employment lawyer you might in that case be able to argue that you should have been paid hourly, you were not exempt, and you want to go back up to 6 years, ask for liquidated damages, and have your employer pay your own attorneys' fees when you win at trial. They are good cases but rarely easy or fast. You are apparently non union, you do not work for the government nor did you enter an employment contract, an agreement usually signed by an employee and their employer for a specific term (i.e. one year contract). If none of these apply you are probably "at will". What that means is that your private employer can lie to you. But they can not discriminate against you. Sometimes an employee thinks they were discriminated and when an employment lawyer speaks with them it turns out they are owed unpaid overtime. They were improperly classified as managers and should have been paid hourly plus overtime. In your case it might be that you were discriminated for some protected  class to which you belong and that might be your strongest claim. Or you might just quietly confidentially look for another job and leave a dishonest employer once you find a better one. Dishonesty itself is not illegal. Dishonesty in selling a product or negotiating a goods contract might be. But in employment as long as an employee is paid at least minimum wage plus overtime thats often OK. Unless the employee is misled into believing they are an assistant manager when they have no authority to hire or fire, don't make policies and the list goes on. In that case even a $90,000 a year manager might be entitled to unpaid overtime. Why? Because their salary pay stubs misrepresented the implied discrtion and independent judgment they were supposed to have. Make someone a manager they better have the discretion and independent judgment which goes with that title. It is shocking how many employees never realized they were being discriminated. But proving that takes time and good strong facts. Call some employment lawyers because I can read that if you complain too much without having a backup plan of potential litigation you could lose your job and maybe even unemployment benefits.... Read More

Timely appeal the denial of benefits. Make sure to introduce into evidence all your medical records as well as all the jobs you have applied for which you can actually perform. Hire an employment lawyer for your unemployment appeal hearing if it's not too late. Everyone has a duty to mitigate damages which means to keep looking for work. Gather all the evidence of that which will probably be as important as your medical evidence.... Read More

A licensed employment lawyer in New York can do that. We charge anywhere from $250 to $500 to review those. If you have an employment contract, non-compete concerns or other issues probably the high end. Good luck. Usually the lawyer will speak with you, agree on a fee and when the review will occur, you pay on line, the lawyer reviews and makes notes on the agreement which are scanned and emailed to you, sometimes you engage in a follow up phone conference. Any services beyond those would be extra.... Read More

The vacation check maybe depending on how you left, what their policy was and whether it was applied uniformly. The last paycheck probably not. There are very limited circumstances under which employees consent in writing to deductions from pay. Withholding pay is never allowed unless they had overpaid you or were obligated usually by court order to forward the money for your unpaid debts if any. Demand your money in writing certified mail green card returned. If they dont pay sue them in small claims court in whatever county you worked or where they do business. It costs very little for you assuming it's done in good faith. An employment lawyer would need to carefully read all of your paperwork mentioned above, lawyers have bills like you, and it looks like it would be more economical for you to give it the old college try yourself with the small claims court. Good luck.... Read More

If you have a reasonable fear for your physical safety or are being stalked go to the police. You can request an order of protection similar to any type of domestic situation where a partner feels threatened. Such an order will result in a transfer or termination of employment (hopefully not yours were a court to determine you are the aggressor) since that employee will then need to stay clear of you.... Read More

Interesting question. Have you called your physician? If you have any underlying conditions, are older, or vulnerable you may request an accommodation under either the NYS Human Rights Law or the ADA. Every employer has to comply with its general duty to provide a safe workplace under OSHA. But OSHA has guidelines not independent actions which individual employees pursue. String instruments are different from horns which require deep breathing which enhances the possibility of inhaling viruses. Ask your doctor. Make sure you communicate closely with HR and explain your concerns. Take notes. Keep records. There have not been that many COVID-19 lawsuits yet but that will likely change. Ask the employer for a copy of their safety guidelines for COVID-19. Every employer should have some by now. What extra cleaning and disinfectation will they be performing? You need all that information for your doctor. You will also want to call employment lawyers to follow up before you make final decisions. These are fluid times. Nothing is certain. Good luck. Watch some employment law reality check videos on YouTube.... Read More

Apply for unemployment? You might qualify under the pandemic unemployment benefits even if you don't under state guidelines? Apply honestly and see what happens. Tell the DOL exactly what happened. Not having you report to your sister sounds legitimate. But there must be another shift other than the one your sister manages and most places do not want to lose hard workers because it costs money to train new employees. Since your sister still works there ask her how you can fit into the employer's workplace. Remember that not every employee is a good fit for every employer. I doubt that I could have worked for some of the employers that my brother worked for when we were younger. He and I have different styles, etc... Don't try to force yourself to work in a place if it's not the right fit for you because it looks like the fit is good for your sister. ... Read More

Be careful. Releases are contracts. You should retain a lawyer to review the severance agreement for a flat fee to make sure you do not release an impairment potential settlement. Medical benefits are not the same as settlement payments which could lead you down a long litigation. If you do not have a work comp lawyer retain one. They only recover if you recover and their fees are approved by the work comp board. Sign nothing without lawyers' reviews.... Read More