New York Employment Lawyer Blog

The FMLA permits employers to require employees to use their accrued paid vacation leave and their sick leave for some or all of their FMLA leave. According to the FMLA regulations, an employer can require paid sick leave to run concurrent with FMLA leave. However, under no circumstances can an employer penalize an employee for taking FMLA qualifying leave as sick leave. One very common abuse is the establishment of point-based policies which penalize employees for each unexcused absence, whether the absence is FMLA qualifying or not. These policies clearly violate the law. Recently, we successfully litigated a case against a multinational corporation with a policy which allowed for the accrual of points even for excused, FMLA qualifying absences. The company narrowly avoided a class action and was forced to pay the employee three times her yearly salary for this costly mistake. If you think your employer has violated the FMLA, contact us for a free screening to discuss your rights.

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.

This is a very hard question to answer. I usually ask a few questions before providing a response - do you want to? Why? The first thing you need to do is look in the mirror and ask why you want to leave. If you can convince yourself (or maybe your spouse or another trusted person in your life) that you are not being treated fairly and need to leave, then you should start to plan a departure. Don't make a hasty decision. With few exceptions, you can't take back a resignation, and if you have access to sensitive company information, your departure may be hastened if your employer perceives any threat of disloyalty.

Practically speaking, the problem with resigning is that the law does not encourage it. With few exceptions, a resignation means forfeiting your right to unemployment, recovery for having to leave the workplace due to harassing behavior, entitlement to any unpaid bonus compensation (even earned) and/or a severance payment. Why are people forced to endure unfairness? If I had a dollar for every time I answered this question, I'd be a rich man. Public policy encourages employment, even if this creates hardship for some.

If you must leave the workplace, consult with an attorney about the best way to go about it. If you are leaving due to workplace hostility, you will need to know (1) what you are allowed to remove from the workplace, (2) what you should say/do on your way out and (3) what type of treatment and compensation you can expect from your employer after you resign.

My seven month old daughter hardly every blinks. My wife and I noticed this at some point in the fall and debated the origin and seriousness of the condition. In my uninformed opinion, low frequency blinking is a genetic characteristic. My wife was unconvinced and had her checked out by our pediatrician, who said it wasn't a problem (but didn't elaborate).

Why do babies blink less than adults? As it turns out, a number of factors contribute to low frequency blinking in babies, including less stress and more sleep than adults (go figure).

I was not entirely wrong. There is some evidence to suggest that low frequency blinking is an inherited trait. So could an airline require genetic testing for pilot candidates in the hopes of weeding out high frequency blinkers and identifying low frequency blinkers? If the condition is genetic, probably not. In the last 10 years, the federal government, and many local governments, have passed legislation prohibiting discrimination in employment based on genetic predisposition.

Too far fetched? Think again. Disability discrimination claims have originated this way. In fact, the Burlington Northern Santa Fe Railroad was sued by the EEOC for requiring that their employees who file claims for work-related carpal tunnel syndrome undergo genetic testing for a genetic deletion that has been proposed to make a person more susceptible to the condition. Before it went to trial, the Burlington Northern Santa Fe Railroad settled the lawsuit and stopped requiring genetic testing for their employees.

I have screened plenty of calls from the recently terminated, and by far the most common inquiry involves a separated employees’ right to accrued vacation pay. My answer – it depends. If your employer has a monthly vacation accrual policy, you are entitled to a prorated share of your annual entitlement based on the number of months worked prior to your termination. However, many employers include disclaimers which nullify the benefit upon termination. Look closely for these policies – if they are in your employment manual, you don’t get anything.

This is not a matter of pocket change. Some generous employers allow for rollover of vacation days, and employees can accumulate a substantial reserve of accrued vacation days. I have a friend who made a down payment on an apartment with his accrued vacation cash out. Don’t leave any money on the table. Accrued vacation time should be the first benefit you seek in your severance payment negotiation, followed by any unpaid overtime wages.

At the end of the 1978 movie "Animal House," before the credits role, the fate of the degenerate frat boys at the heart of the story is revealed in short clips. John "Bluto" Blutarsky, played by John Bulushi, becomes a U.S. Senator, and others become doctors and diplomats, the joke being that drunken depravity is not a liability in some supposedly respectable professions.

If you are an employee in a law firm or medical office, don't expect a civil work environment simply because you work among the well-educated. The Blutos of the world, often blessed with social privilege and elite schooling, take their depravity into adulthood. In fact, there are plenty of professional offices which become small social clubs, like fraternities, centering on the same rituals of drinking and debauchery.

Sexual harassment involves the exploitation of power. Doctors' and lawyers' offices are not immune to these abuses.

Sometimes I feel more like a shrink than a lawyer.   You see people often call a law firm like ours after they get fired.   They are frequently upset and confused and sometimes they just want a sympathetic ear.   After listening to these calls for more than 10 years now, I have noticed a trend in the stories.

First, people are usually angry because they feel as though they were fired unfairly.   They see a disconnect between their hard work and loyalty and how they were treated.   I have heard so many sad stories of people who worked for decades and then abruptly fired and left with little or nothing.  

Second, because people are angry and sense some kind of unfairness, they often want to strike back and challenge the company.    But most of the time, there is nothing that can be done legally.   This is because fairness is not part of the law.   There is no law requiring fairness or decency.   Rather, an employee can be fired for any reason or no reason.   Yes, after spending 20 years working for your company, you have no right to that job and you can be fired without any notice and severance pay is not required either. 

Many good companies provide notice and severance packages, but they do this voluntarily.  It is not required.   In many other countries, employees are entitled to notice and severance pay, but not in America.   America is tough – people are resources to be exploited by the company – hence the term “human resources.”

Truly great companies, however, usually do not treat people poorly.   The best way to protect yourself and enjoy a rewarding career is to find a good company run by decent human beings who will hopefully treat you fairly and honestly.   But remember,  fairness is not required and you are an employee at will.  Now that you know this, save some money so you have at least a six month buffer in case you get the boot.     

We get phone calls and emails from people every day who tell us about a wrongful termination. Some people have spent decades working for a company only to be fired on a whim. These people are often in tears or extremely upset - their careers damaged and their financial survival in jeopardy. Most all of them do not have any legal basis to challenge the termination. We have to tell them about the employment at will doctrine. It means that an employer can fire anyone at any time for any reason or no reason. The laws of this country only prohibit employment discrimination, paying wages that are too low, and several other limited laws. It seems unfair to the person who was just fired. They are often in shock to learn that there is nothing that can be done other than find a new job. While it may seem unfair, the employees often to do not realize that the employment at will doctrine is a two way street. They are free to quit anytime they want and they can quit for any reason or no reason. Both parties to an employment relationship are free to end it at will.

New York employment law firms routinely use contingent fees for certain cases such as sexual harassment and employment discrimination matters. For many clients, the contingency fee is the only option because they do not have enough money to pay a lawyer by the hour. Contingency fees also encourage lawyers to handle matters efficiently and not engage in excessive and dilatory practices. It is said by some that the hourly fee arrangement encourages lawyers to do things that are not necessary in order to run up high fees.

I personally think that many lawyers do this. How else can you explain all the nonsense that goes on in cases. I think the hourly fee is bad for everyone - it causes lawyers to file needless motions in court and this wastes precious judicial resources. The hourly fee also gives lawyers a bad rap with the public. They are seen as over-paid parasites by many and sadly there is truth to it. Legal work could be streamlined and made far more affordable and accessible. The hourly fee can be blamed for much of this.

George Bush recently signed an executive order that prohibits the federal government from paying lawyers a contingent fee. It is usually smart to do the opposite of what Bush does. Since he wants to bar contingency fees, that must mean they are good. But the private sector is catching on and more companies are hiring lawyers on contingent fee agreements. It is smart business. It aligns the interests of the lawyer and the client.

“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.” Charles Dickens, Oliver Twist.

Title VII, the federal employment law, is only 42 years old and it is still a bachelor and sometimes it acts like an ass. Maybe with experience it will mature.

At our employment law firm in New York, The Ottinger Firm, we see many people who have been mistreated. But the law's protection in the workplace is narrow and arbitrary. Generally, only discrimination, retaliation, and certain wage practices are illegal.

Most of the time, when someone comes to see us about a problem at work, all we can do is advise them to get a new job. The best remedy is to find a great employer that treats people well. Those jobs are hard to find. For now, it is perfectly legal to abuse people at work and ruin someone's career for no good reason.

Employment lawyers continually face the problem of employees who write their innermost thoughts on the company computer. Why this happens is understandable. People spend a lot of time at their jobs and office drama and employment issues are topics of interest everywhere from water cooler conversations to television shows and movies. It is understandable that after a hard day’s work you want to vent. All that we employment lawyers ask is that you vent on your own time and on your own computers at home.

Office computers are the property of the company, as is anything on those computers from emails of your favorite crock-pot recipe to musings about what kind of tree you would be. While these examples are funny, others are not. A terminated employee who keeps a resume on her desktop and job postings in her files has just given her employer a basis for termination.

In a recent case in Iowa, a young girl kept a diary of how much she was slacking off and getting paid for it. This might be fun to read but it was also a cause for termination. As it turned out, the online diary of procrastination and malaise also led an administrative judge to deny the girl the right to collect unemployment. Judge Susan Ackeman said the journal indicated a refusal to work.

Next time you are at work and you are mad at the boss and frustrated by your co-workers and being driven crazy by the fluorescent lights, remember that whatever you put on that computer is the company’s not yours. Leave your innermost thoughts, feelings, opinions and job searches anywhere you want except the company computer.

I once defended a New York State prison that was sued for violating an inmate’s First Amendment rights. The inmate was a Rastafarian and his dreadlocks were shaved off by the prison. The inmate claimed that his dreadlocks were an expression of his faith and therefore protected by the First Amendment. He lost his case and this was part of a trend of Courts narrowing the First Amendment.

More recently, a teacher lost her First Amendment case. She gave a gay student two religious pamphlets that harped on the sinfulness of homosexuality. The student told the school about this and the teacher was fired.

She sued the state run college under Section 1983 claiming that her speech was protected by the First Amendment. The Seventh Circuit held that free speech is alive and well in the classroom, but that this speech had nothing to do with the classroom. The court held that the religious anti-gay pamphlets had no connection to the subject matter of the course, cosmetology, and therefore the First Amendment did not apply.

The court found that [T]he college had an interest in ensuring that its instructors stay on message while they were supervising the beauty clinic, just as it had an interest in ensuring that the instructors do the same while in the class room." Further, "[the plaintiff's] 'speech,' both verbal and through the pamphlets she put in [the student's] pocket, was not related to her job of instructing students in cosmetology. Indeed, if it did anything, it inhibited her ability to perform that job by undermining her relationship with [that student] and other students who disagreed with or were offended by her expressions of her beliefs. … [T]he college reasonably took the position that non-germane discussions of religion and other matters had no place in the classroom, because they could impede the school's educational mission," the court said.

Piggee v. Carl Sandburg Coll., No. 05-3228, 2006 WL 2771669 (7th Cir. Sept. 19, 2006).

Here are the guidelines of how to preserve stock options when you are fired. Exercise them and do it to the letter!

In Deal v. Consumer Programs, Inc., an 8th Circuit Court of Appeals case, Ms. Peggy Deal was fired following a change of control in the corporation. Her Employment Agreement entitled her to severance payment, unaccrued base salary and a bonus. Under a separate Options Agreement, she was entitled to purchase stock for 90 days at a reduced price post termination.

Ms. Deal received her severance but was denied her unaccrued salary and bonus. Ms. Deal retained a lawyer and notified Consumer that she was seeking the monies owed and that she was going to exercise her options. Before paying for the stock, as per the agreement, she sought reassurance that Consumer would uphold its end. Consumer did not respond to two letters sent regarding the stock options and Ms. Deal never paid the purchase price. The 90 days came and went.

Ms. Deal sued for the monies owed under the Employment Agreement and the stock. She was awarded the monies but not the stock. Both parties appealed and the appellate court said that despite Consumer’s failure to perform under the Employment Agreement Ms. Deal had no right to seek assurances for the options deal. She did not pay the purchase price for the stock and the time period for her to exercise the options had passed. Therefore, she was denied her options.

When an employee is terminated for whatever reason (or no reason at all) it is important to ferret out the employment issues from the pure contractual issues. Despite Consumer’s failure to live up to the terms of the employment agreement Ms. Deal must observe and follow the terms of a separately negotiated and signed contract with Consumer.