New York Employment Lawyer Blog

Late last year, our firm received a telephone call from an administrator employed by a hospital in New York State. The call was particularly memorable because the caller was frantically racing to finish the case screening - she had to return to her desk within 10 minutes or her absence would be noticed and dispparoved of by her supervisors. She told me that she was expected to work around the clock, including through her lunch and rest breaks, without any overtime pay. I asked her how many others were not receiving overtime and she seemed puzzled; nobody was getting overtime, she told me. We did a quick calculation and determined that over 100 employees were owed about $20,000 each. She was terrified of retaliation from her employer, and never called back after our intial call.

I've thought of this caller often - she was truly terrified of her employer - and wondered why we don't get more calls from health care workers. Apparently, it is not for a lack of wage and hour violations. The New York State Department of Labor recently launched a wage and hour enforcement intiative aimed at the health care industry, noting that nearly 65% of health care employers in New York who had been investigated in the last five years were not in compliance with federal wage and hour laws. If this is the case, the restaurant industry may have stiff competition as the most FLSA noncompliant industry.

This week, 37 million Americans will fill out NCAA tournament brackets. That's an incredible number. Today, President Obama filled out his bracket in a televised event that later made headlines across the country. The popularity of the NCAA tournament is undeniable.

However, unlike most other major sporting events, the NCAA tournament is aired smack in the middle of the work day and is available via streaming video on the internet. Needless to say, the temptation to watch the tournament on your workplace computer is now much harder to resist considering how easy it is to pull it off. Some commentators have gone so far as to suggest that the US economy is impacted by the decline in worker productivity which results from tournament fans tuning in during work hours. Doesn't seem like a stretch.

Can you be fired for watching the tournament at work? Of course. In New York, and in most states, employees can be fired for any reason or no reason at all, provided that unlawful discrimination and/or retaliation is not involved.

The better question is how to safely avoid detection while watching in the workplace. This is more puzzling. The challenge is twofold: (1) the tournament is long, so there is more opportunity for detection, and (2) watching a sporting event is not easy to conceal. My advice - watch on your computer, mute the volume and avoid excessive celebration. If you get caught, tell the truth and don't call a lawyer if you get fired because you're toast.

Better yet, just take a day off.

One of the biggest obstacles to negotiating severance pay is workplace misconduct. Typically, if misconduct is discovered by your employer, even if you are being let go for reasons unrelated to your performance, you will not be eligible for severance pay.

If you failed to pass on a benefit to your employer (i.e. if you pocketed or diverted company funds) or if you competed with your employer during your employment, you should not expect any severance pay. In fact, you should find a lawyer, because you could be sued by your employer for breaching your fiduciary duty. Moreover, if you were repeatedly disloyal throughout your employment, your employer has the right to seek disgorgement of compensation, including salary and bonus, for the periods during which you were disloyal. This rule, known as the faithless servant doctrine, is extremely harsh. It extends to almost any breach of an employee's fiduciary duty, including mere breaches of confidentiality, and does not require proof of harm to one's employer. Also, if you are paid by your employer in installments which are not task based, the court will not distinguish between which portions of your compensation were paid in violation of the faithless servant doctrine - you will have to pay all of your salary back for the period of disloyalty.

If you have been disloyal to your employer, and if your employer is aware of it, being denied severance pay may be the least of your worries. Many employees assume that competing with one's employer is merely terminable but not unlawful. The average employee misundertands the risks of unfaithfulness - don't fall into the trap.

Are you employed in Florida and wondering why you aren't getting overtime pay? Get in line. Florida led the nation in FLSA lawsuits in 2009 with over 2000 filed. That's 37 wage and hour lawsuits a week in the sunshine state. There's a number of different theories about why so many FLSA lawsuits are filed in Florida, but I haven't found any of them to be convincing. My theory is that since there is no state wage recovery statute in Florida the only remedy for employees deprived of wages is the federal court and the FLSA.

I recently spoke with another plaintiffs' side employment lawyer practicing in Florida about the increase in FLSA lawsuits in his district and he groaned. As it turns out, the federal bench in Florida has grown weary of these lawsuits and perceives most of them to be abusive. In fact, the Middle District of Florida requires all FLSA litigants to answer judicial interrogatories immediately following the filing of a lawsuit in an effort to quickly resolve these cases.

Another possible reason for the FLSA litigation explosition in Florida - timeshares sales. In a January 25, 2007 opinion letter, the Department of Labor determined that on-property timeshare salespeople are nonexempt employees under the FLSA and are entitled to overtime. There are thousands of timeshares sales employees in Florida who may have only recently become aware of their entitlement to overtime.

If you are one of the Florida residents cheated out of overtime, call us for a free screening to determine your rights.

With so many people losing jobs, I have spent a lot of time talking to people about severance packages. After reviewing so many cases lately, there are a few key points that surface and people should be aware of them when considering a proposed severance package.

Employment Discrimination

First, don't sign the severance agreement if you have been terminated due to employment discrimination. If you sign the severance package, you will waive your right to bring an employment discrimination claim. Instead of signing the proposed severance agreement, you should negotiate for more severance pay. As an example, I reviewed a proposed a severance agreement for a client who I will call Ralph (not his real name). Ralph, was in his 60s, and he had worked for the company for about 12 years. He had been doing a great job, but he was told that the company needed to cut back and had to let him go. They also said his performance had been weak lately. But, the day after Ralph was fired, a younger man was sitting in his chair doing his job. And Ralph's performance was not weak, in fact, it was better than ever. Ralph hired my law firm and we negotiated a better deal using the facts that indicated a viable age discrimination claim.

Unemployment Benefits

People often assume that their employer will not contest their request for unemployment benefits. Remember, your company can dispute your request and argue that you were fired for poor performance or even allege that you resigned. Rather than take a chance on a future battle over unemployment benefits, ask your company to include a written promise not to dispute your claim for unemployment benefits in the severance package. It is a non-monetary concession that companies are often willing to provide.

Health Insurance Benefits

If your employment is terminated, most companies are required by COBRA to allow you to stay on their health insurance plan for up to 18 months or more. But, the employee must pay the insurance premiums and these can be costly. If you are offered a severance package, you should ask the company to pay your health insurance premiums for a few months. For example, if you are offered three months of severance pay, ask the company to include three months of COBRA payments as well.

These are a few common situations that arise in severance pay negotiations. If you need assistance with your severance package, give us a call.

The following is a guest blog article by Dolan Law Offices:

Approximately 36% of people with disabilities who are of working age and live in the community are employed. This means that more than 8.5 million disabled people are working in the United States. While some of these people have been disabled their entire lives, others were just victims of serious personal injury accidents which caused their disabilities. For example, a serious motor vehicle accident can result in spinal cord injuries, traumatic brain injuries and other serious physical limitations.

The Right to Return to Work

The federal Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide people with disabilities an equal opportunity to benefit from the full range of employment-related opportunities. A person with a disability, for purposes of ADA protection, is one who has a physical or mental impairment that substantially limits one or more major life functions.

Reasonable Accommodations

An employer has the responsibility to make reasonable accommodations for a person with a disability. Reasonable accommodations are highly individualized and dependent on the person and type of disability. They may include things such as:

• Building renovations to include a handicap-accessible ramp or bathroom;
• Providing sign language interpreters and TTY services;
• Providing Braille materials and / or readers; and
• Allowing a person to take time off to get medical attention or rehabilitation services related to the disability.

The ADA defines reasonable accommodations as the type of activities, services or renovations that do not create an undue hardship for the employer. The U.S. Equal Employment Opportunity Commission (EEOC) and courts will consider things such as the nature of the accommodation, the cost of the accommodation with relation to the assets of the employer, and whether any other accommodations exist that would allow the employee to benefit from the full range of employment-related opportunities and would be less of a burden to the employer.

What to Do If You’ve Been Denied Reasonable Accommodations

If you believe that you have been discriminated against because of your disability and that you have been denied an equal opportunity in recruiting, hiring, promotion, training, pay or any other employment benefit, then you may have the right to file a complaint with the EEOC. A lawyer can help you evaluate your case and represent you before the EEOC and in any subsequent or related legal proceedings.

Dolan Law Offices is a Chicago, IL personal injury law firm. We represent victims who suffer serious injuries such as traumatic brain injuries and spinal cord injuries in Illinois. We are committed to helping each of our clients recover full and fair compensation for their injuries.