Employment Law Blog

Severance Agreement Oppression

Regulators are getting stricter about severance agreements.  Read on to learn about how some severance agreements were found to be TOO strict and how to protect yourself when signing one.  There are certain claims that you cannot waive in your severance agreement.  For example, you cannot waive your EEOC (Equal Employment Opportunity Commission) claims.  But your employer can make you sign away your right to recover monetary damages for any EEOC claims. Don’t let yourself suffer from severance agreement oppression. If the severance agreement has an employer non-disparagement clause, there must be language in the agreement to allow former employees to give truthful information to the EEOC and that allows the employee to testify about their employer if subpoenaed. You cannot waive your FLSA (Fair Labor Standards Act) claims.  But your employer can make you sign a statement acknowledging that you have been properly paid. You can waive your claims under the ADEA (Age Discrimination in Employment Act) in a severance agreement. In order for the ADEA waiver to be valid, the employer must be sure these seven factors are met: The severance agreement must reference the ADEA by its full name. The employee must be provided at least 21 days to sign the severance agreement. After signing the agreement, the employee must be provided at least 7 days to change his or her mind. The employee must be advised to consult an attorney before signing the agreement. If the employee was terminated as part of a group, he or she must be given written notice. Employees terminated as part of a group have at least 45 days to considering signing the agreement. Employees terminated as part of a group have a right to see a written list of the group of workers from which the employer chose the workers to be laid off. The list must state who was laid off, who was not and the age and title of every employee in the group. Integration and Severability A severance agreement should contain an integration clause.  An integration clause states that the severance agreement is the one true agreement – that there are no side agreements, whether oral or written.  The integration clause may include a carve out for important side agreements, such as an agreement about the employee’s pension. A severance agreement should also contain a severability clause. A severability clause states that if one portion of the severance agreement is deemed to be invalid, the rest of the agreement still stands. Give us a call if you have any questions about your severance agreement.  We provide a severance agreement review for $500.  One our employment lawyers will review your agreement and meet with you for 20 minutes in person or by phone to over the agreement.  See here for more information. Don’t let severance agreement oppression get you down.

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Employment Law Blog

Retaliation Cases Are Favored by the EEOC

A recent report from the Equal Employment Opportunity Commission (EEOC) reveal that retaliation cases are preferred by the agency.   The EEOC enforces the federal laws that make it illegal to discriminate or retaliate against a job applicant or employee. Retaliation Charges Lead the Way Another interesting aspect of the report was that the largest percentage of charges – 42.8 percent of the 88,778 total charges – were for retaliation.  Sex discrimination came in at 29.3 percent of charges, followed by disability discrimination at 28.6 percent, age discrimination at 23.2 percent, national origin at 10.8 percent and religious discrimination at 4 percent. Color claims accounted for 3.1 percent of charges, Equal Pay Act claims comprised 1.1 percent and Genetic Information Non-Discrimination Act allegations made up 0.4 percent. (The figures add up to more than 100 percent because some charges allege discrimination on multiple basis.)  This is the first year that retaliation charges were the most prevalent. The rising number of retaliation claims is concerning for employees.  We hear from a startling number of San Francisco employees who have suffered employment discrimination who are afraid to complain because they fear retaliation from their employers.  These fears persist despite many laws which specifically prohibit retaliation.  If you have questions about your employment rights or think you might be retaliated against please contact us. San Francisco and other Bay Area Employees Don’t Have It Any Better California’s Department of Fair Employment and Housing (DFEH) is a statewide administrative agency that enforces the Fair Employment and Housing Act (FEHA).  The FEHA, like its federal counterpart the EEOC, protects all San Francisco, Bay Area, and California employees from discrimination and harassment on the basis of age (40 and over), ancestry, color, religious creed (including religious dress and grooming practices), denial of family and medical leave, disability (mental and physical) including HIV and AIDS, gender, gender expression, gender identity, genetic information, marital status, medical condition (cancer and genetic characteristics), national origin, race, sex (including pregnancy, childbirth, breastfeeding, and medical conditions related to pregnancy, childbirth or breastfeeding) and sexual orientation. There were 18,480 charges filed with the DFEH in 2013 (the last year statistics are available for).  Like the EEOC, there were only a small number of lawsuits filed by the DFEH.  Of the 18,480 charges filed, only 40 lawsuits were filed by the DFEH.  As with the EEOC, for San Francisco and other Bay Area employees enforcement of the prohibitions against employment discrimination and harassment is ultimately left to the employee.  It is the goal of the Ottinger firm to help you with your efforts. Please contact us if you are a San Francisco or Bay Area employee who has suffered harassment or discrimination at work. The Statistics Reveal That The EEOC Does Not File Lawsuits to Enforce the Harassment and Discrimination Laws The most revealing statistic was the embarrassingly low number of lawsuits filed by the EEOC.  The EEOC’s enforcement duties include the duty to file lawsuits on behalf of employees.  However, of the 88,778 charges there were only 167 lawsuits filed.  That means your chances of the EEOC filing a lawsuit on your behalf is .0019%. Employees who have suffered harassment or discrimination and who are hoping to rely on the EEOC to vindicate their rights are in for a shock.  Instead, actual enforcement of the discrimination and harassment laws the EEOC is responsible for is left to the employee.  The employment attorneys at the Ottinger firm are available to help you in your efforts.  If you have suffered discrimination or harassment please contact us or submit a free case evaluation.

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Employment Law Blog

Non-Compete Clause: How to Escape from Them – Video.

Un-shackle Your Non-Compete Clause Do you feel trapped by a non-compete clause?  Is there a job you want but feel chained to your current employer due to a non-compete clause.  You are not alone. Non-Compete clauses have been overused and abused.  More cases are being filed challenging the validity of non-compete clauses.  And employees are winning more of these cases.  This video provides three examples of arguments that have been used to defeat non-compete clauses. The tide is turning against the use of non-compete agreements.  Here are a few articles discussing the trend. Wall Street Journal Inc. – The Case Against Non-Compete Agreements See our main page on non-compete agreements. Transcript of video: Hi, I’m Robert Ottinger. I’m an employment lawyer, and I’ve been representing employees for over 15 years.  Many of our clients come to us because they want our help getting out of a non-compete agreement that’s keeping them from going to the job they want.  Well, I’m going to give you three examples of circumstances in which you can get out of your non-compete agreement. Example one is if your employer fires you without cause.  In that case, a non-compete agreement is pretty much void and unenforceable. Two, if your employer has changed the nature of your job or the way you’re paid after you signed the non-compete agreement, you can argue that the contract is now changed, so it can no longer be enforced. And three, one court last year held that a non-compete clause couldn’t be enforced because the employee had only worked there for less than two years, so that’s now a new factor some courts are looking at. Well, those are three examples, if you’re bound up by a non-compete clause, don’t give up hope.  There may be a way to get out of it. Contact us online or call us at 347-492-1904 for a free consultation about your non-compete clause.   We have been helping executives for over 15 years.

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Employment Law Blog

Getting Fired Without Cause Will Void a Non-Compete Agreement in New York

Non-compete agreements in New York are typically rendered unenforceable if the person subject to the agreement is fired without cause. Non-compete agreements are disfavored in New York and will only be enforced if there is a legitimate reason. Courts have generally found that no legitimate reason exists if an employee is fired without cause. If the company decides to let the employee go through no fault of the employee, then it would be extremely unfair to restrict that employee’s options in the workplace.  A company cannot terminate an employee and then try to prevent that employee from working for a competitor. But this rule does not apply if you are fired “for cause” or if you resign. Also, be wary of severance agreements that try to bind you to a non-compete agreement.   If you are fired or laid off, do not sign a severance agreement that says you are bound by a non-compete agreement.   If you do you could find yourself bound by the non-compete again. As Donna Ballman explains in the referenced AOL article, the law in each state is different. In California, for example, non-compete agreements are generally unlawful and are rarely enforced. Massachusetts is also considering similar legislation to remove non compete agreements as needless restraints on trade. In my opinion, New York should also outlaw non-compete agreements.

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Employment Law Blog

IS JESSE PINKMAN ENTITLED TO OVERTIME PAY?

THIS POST CONTAINS SOME SPOILERS Jesse Pinkman has a lot of things on his mind, including an open DEA investigation and the violent death of everyone he’s ever loved.  Unpaid wages are probably not high on his list of priorities. Still, he may want to think about talking to an employment lawyer when the dust settles, as Jesse may be owed a lot of money.  Leaving aside for a moment the illegality of his profession, Jesse has an argument that he is entitled to overtime for at least part of the work he did over the course of the show. There’s No “Meth Superlab” Exemption to the FLSA In the first few seasons, Jesse and Walter set up shop in their own Winnebago. They set their own hours, determined the places they worked, and provided their own supplies. As such, they were clearly self-employed, or perhaps independent contractors for Tuco Salamanca and the cartel.  Either way, they would not be entitled to overtime.  Likewise, at the end of the show, Pinkman was more or less enslaved by the Nazis. Overtime at that stage was the least of his concerns. But in Season Three, Walter and Jesse were employed by Gus Fring, the fried chicken magnate and cartel overlord, in his underground meth Superlab. The terms of their employment were determined by Fring, they were paid a fixed salary (of $15 million a year between them), and, especially as Fring became suspicious of Walter, they worked under close supervision. As such, they were most likely employees for the purposes of federal law. Under the Fair Labor Standards Act, all employees are entitled to overtime compensation for any hours worked over forty in a given workweek, unless they fall within one of several defined exemptions. For instance, “learned professionals”–employees in a position that requires an advanced degree, such as doctors and lawyers–are not entitled to overtime compensation. Computer specialists, executive employees, outside salespeople, small farmer workers, and casual domestic workers are all likewise exempt from overtime rules. Walter White was Jesse’s supervisor and manager, and would therefore fall under the executive exemption. But Jesse does not neatly fit into any of these categories. By the middle of season four, Gus and Walter had agreed to a long term, $15 million a year deal. Assuming Jesse was entitled to half, he was making a salary of $7.5 million per year. The most likely exemption that Jesse might fall under would therefore be for “highly compensated” workers. The federal regulations contain a special rule for  workers who make $100,000 or more per year. To qualify for this exemption, however, Jesse would have to perform “office or non-manual work” as his primary duty, and cooking meth arguably falls outside the scope of that rule. Of course, bringing a federal lawsuit against Gus Fring’s estate or Los Pollos Hermanos for unpaid overtime compensation would lead to some extremely uncomfortable questions about tax evasion and money laundering (not to mention building a methamphetamine  empire). Most fans probably hope that after Jesse’s final escape he is free and happy in Alaska. But if he ends up getting what’s coming to him, he might as well try to make sure that includes unpaid wages. I wonder if Saul Goodman takes employment cases?

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Employment Law Blog

Overtime Pay Basics

Everyone is Assumed to be Entitled to Overtime Pay Under the law, everyone is assumed to be entitled to overtime pay.   It does not matter how you are paid or what kind of work you do.  Even people who earn a salary are entitled to it.   Most all jobs that involve manual labor or clerical/administrative office work qualify for overtime pay. The Exemptions to Overtime Pay The law assumes that everyone should get overtime pay – UNLESS they fall into an exemption.  There are many exemptions but the four most common ones are listed below. Managers People who are genuine managers are exempt.  To qualify for this exemption, the person must manager two or more people and managing people must be the focus of their job.  If a person manages just a few people and spends the bulk of their effort on other tasks they may not qualify as a manager. Employees are often misclassified as managers just to avoid the overtime pay requirement. Executives High level company officials who run a company or department within a company are also exempt.  See the U.S. Department of Labor Fact Sheet for more on the Executive and Managerial exemption. High Level Administrators Employees who make important, unsupervised, business decisions are also exempt. Learned Professions People with advanced degrees like doctors, dentists, lawyers and the like are also exempt. These are the four most common exemptions.  See a more detailed explanation of your rights to overtime pay on our New York Overtime Lawyers page.   If you have questions, please give us a call for a free consultation.

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Employment Law Blog

New York (NY) Wrongful Termination Laws

What NY workers need to know about their rights in cases of illegal retaliatory employment termination NY Wrongful termination occurs when an employee is fired for an illegal reason.  But NY wrongful terminations are rare.  This is because most all New York employees are employees-at-will.  An employee-at-will can be fired for any reason, or no reason at all. Fairness is not required.   The only way to remove yourself from the employment-at-will category is to have an employment contract or company policy manual that limits your employers ability to fire you. NY Wrongful Termination Does Not Cover Unfair Firings Many firings are based on fact disputes.  For example, an employee might be fired for being late to work when the employee actually was not late.  The employee who was fired for being late may feel that they were fired wrongfully.  But legally, the firing was not wrongful because companies are allowed to fire employees for any reason at all, even based on a misunderstanding. Being “let go” is never any fun, regardless of the reason.  It is especially painful if the reason was unfair or based on a misunderstanding of the facts. The fact is that it hurts and it is embarrassing, not to mention the stress and worry about finding another job in today’s marketplace.   Unfortunately, as much as you might want to seek revenge by filing a claim or cause of action against your former employer for wrongful termination, you may not have a leg to stand on because of the employment-at-will rule.  Often employees feel that they have been wronged simply because they have been loyal to the company for such a long time that they are entitled to more than just a goodbye. When Does NY Wrongful Termination Occur? NY Wrongful termination exists when the termination is unlawful.  This occurs if the termination breached an existing employment agreement or violated one of the laws that protects New York employees.   Employees have the right to be protected from the breach of any oral or written contractual agreement between the employer and employee, as well as protection against any illegal acts by the employer. For example, if the termination was not in accordance with the outlined procedures in the employment contract; if there was some form of employment discrimination involved regarding age, pregnancy, sex, disability, race, etc. or if there was some form of retaliation for reporting other acts of discrimination or violations of federal securities laws, there could be a claim or cause of action for NY wrongful termination. Every case is different and each is determined on the specific details and circumstances of the termination of the employer-employee relationship. Remedies for NY Wrongful Termination In NY wrongful termination cases, employees can recover any lost income that resulted from the illegal firing.  Other remedies such as punitive damages, compensation for emotional distress, legal fees and costs can also be recovered under certain laws.   For example, an employee fired due to a violation of the Family Medical Leave Act is entitled to recover double damages (twice the amount lost pay) as well as legal fees and costs.  Likewise, the New York City Human Rights Law provides employees with the right to collect unlimited punitive damages for any form of employment discrimination or sexual harassment. If you need help with a NY wrongful termination case, please contact The Ottinger Firm for a free consultation at 347-305-5427.

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Employment Law Blog

Severance Packages – Key Points for Every Agreement

A severance package is designed to ease your transition out of the company. Your employer wants to make sure you leave quietly and you want to obtain a cushion to hold yourself over until you find a new job. The points below are important to anyone trying to evaluate a severance offer.  If you need assistance, contact our lawyers today. 1. Understand the Quid Pro Quo of the Severance Package The quid pro quo of a contract is the heart of the deal – the exchange of value. In reviewing your severance package, you need to understand what you are getting and what you are giving up. In most severance packages, you will be receiving a payment of money, possibly some health care coverage, stock options, and other things of value in exchange for your promise to leave the company and waive your right to sue them for anything or say anything bad about them. That is usually the quid pro quo of a severance package. Make sure you understand exactly what you are getting and what you are giving up. 2. The Money Most every severance package contains a promise to pay money. Typically, the money is paid out as salary over a period of time. For example, your severance package might say that you will receive your salary for three months after your last day in the office. The money component of a severance package is almost always discussed in terms or weeks or months of a person’s salary. Be sure to check your agreement so you understand how much money is being paid to you. Remember, you can always ask for more money. If your severance package states that you will receive three additional months of salary after you leave, you can always ask them to increase the offer from three months to six months. You don’t need a reason for asking for more. But if the company asks why you want more money, you can say that you need more because you expect that it will take you more time to find a job. 3. Health Benefits in a Severance Package Your employer will be required to offer you COBRA benefits. COBRA refers to a federal law (Consolidated Omnibus Budget Reconciliation Act of 1985) that requires companies to offer health insurance to terminated employees for 18 months at the corporate rate. For example, if you currently receive health benefits that cost $500 a month through your employer, your company is required under COBRA to offer this same health insurance policy to you at the same price of $500 a month for 18 months. Many severance packages include an offer to make your COBRA payments for a period of time or simply continue your existing health benefits for a period of time and defer the start of the COBRA period. Check your severance package to see if your company has offered to either extend your health benefits or make any of your COBRA payments. Remember that you can ask your employer to help make these payments for you as part of the severance package. 4. Unemployment Benefits If you are about to lose your job, you are probably very interested in obtaining unemployment benefits. Typically, a person is only entitled to unemployment benefits if they are laid off due to a lack of work. A person who is terminated for cause or quits is not entitled to benefits. It is not uncommon for companies to challenge a former employee’s request for unemployment benefits on the ground that the employee was fired for cause or poor performance. You can make sure this does not happen to you by including the right language in your severance package. Obtain an agreement that your employer will not contest your right to unemployment benefits. In order to do this, add a sentence to your agreement with language similar to this: “It is agreed that [You] had been laid off for lack of work (or restructuring or downsizing etc…) and that [You] is entitled to receive unemployment benefits and X Company agrees that it will not contest any claim for unemployment benefits requested by [You]. 5. Exercise Your Vested Stock Options If you were provided stock options, make sure you have an opportunity to exercise them. Typically a departing employee will have 90 days to exercise vested stock options before they expire. But make sure this is clearly stated in your severance package and you can ask to extend the 90-day period. 6. Accelerate the Vesting Schedule for Unvested Options or Equity Grants Executive compensation often comes in the form of unvested stock or options. For example, a company may offer an executive 300 shares of company stock and the shares will vest over three years. If you have unvested equity or options, you can ask your company accelerate the vesting date so they vest before you leave the company. 7. Convert Outplace Services into Cash Companies often offer outplace services to departing employees. If you don’t feel that the outplacement service will provide a benefit, then ask your company to provide you with the cash value of these services. 8. Vacation Pay Some companies allow an employee’s unused vacation time to accrue over time. Check your company policy manual or ask a human resources representative about this and if your have accrued vacation time, ask to have it paid in cash or ask to stay on the company payroll until the vacation time is used up. 9. Determine Why You Were Let Go You may have leverage to negotiate a much better severance package if your employment was terminated illegally. Your termination may be illegal if you were let go for any of the following reasons: age if you are over 40, gender, race, religion, national origin, sexual orientation, disability or serious illness, sick family members, pregnancy, jury service, or for complaining about sex harassment, employment discrimination or failure to pay overtime. If any of these factors are at play, you may have grounds to substantially increase your severance […]

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Employment Law Blog

Non-Compete Agreements Do Not Apply to New York Workers Fired Without Cause

Fired workers in New York are not bound to non-compete agreements if they were terminated without cause. Non-Compete Agreements Void if Employee is Fired Without Cause Arakelian v. Omnicare Inc. concerned a Vice President of Business Development at a Fortune 500 healthcare company who was terminated after the company was acquired by Omnicare Inc.  As part of her severance agreement, the worker had signed a promise not to compete with the company for a period of two years after her termination and not to solicit former clients or workers for the same period of time. The court in its ruling affirmed the New York rule on non-compete agreements that they will not be enforced if the termination was not for cause. This New York rule is based on the assumption that a non-compete agreement can only be enforced if an employer would be willing to still hire the worker. This willingness to hire creates the “mutuality of agreement” necessary to affirm the restrictions. This New York rule sets the state apart from most other jurisdictions that will only strike down a non-compete or non-solicitation agreement if it is unreasonably expansive in time or scope. In New York, this analysis can only occur after an employee voluntarily quits or is fired for cause and had signed a non-compete or non-solicitation agreement. This rule does not just apply to New York employees, however, due to the nature of many non-compete agreements and non-solicitation provisions. As many non-compete agreements cover multiple states or even entire regions, what this rule means is that these agreements will not apply for competition or solicitation within New York state, regardless of the residency or other status of the competing or soliciting worker. So in this case, a Virginia resident working for a Maryland company who signed the non-compete agreement in Maryland cannot be kept from accepting a competing job in New York if she was fired without cause. This rule not only protects New York workers but is sure to attract such workers to New York who may be restricted from working in other states that do not have this rule. Although not explicitly addressed by the court in its opinion, it seems that a confidentiality agreement signed by an employee may not fall under this rule. The plaintiff did not argue the point so the court did not reach the question and it seems no case has directly addressed the issue. If so, that means that a former employee may still be restricted from using confidential client information in order to compete for or solicit clients, and other actions that could violate the agreement. This issue is sure to come up again in New York court and when it does this question may finally be answered. Until then, in New York, employers are severely limited in their attempts to restrict their former employees’ freedom of employment if they are the ones who led to their termination in the first place. This puts New York at the forefront of states in the nation in its protection of any employee’s right to work.

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Employment Law Blog

Retaliation at Work and How to Recognize it

Fear of retaliation at work prevents many employees from defending themselves against the abusive and illegal actions of their employers.   Many employees would rather put up with discrimination, a hostile work environment, or accept being misclassified as an independent contractor or salaried employee, than risk alienating an employer and possibly even losing their jobs by asserting their rights. A number of factors can make the decision to stand up to illegal employment practices a difficult one, but an employee should never be intimidated against taking action by the fear of retaliation at work. A series of federal, state and local laws exist to protect employees against any adverse action taken against them for engaging in a protected activity, such as filing a lawsuit or charge of discrimination with the EEOC, and the scope of this protection is broader than many realize. It may seem common sense that an employer cannot fire an employee for filing a lawsuit. But many are not aware that the legal protection of employees extends much further. In fact, any good faith complaint of unlawful employment practices, such as harassment, discrimination, failure to provide accommodations for a disability, or failure to provide overtime, is considered protected. This includes internal complaints made directly to an employer or the company’s HR department. Complaining to an external state or federal agency, such as the Department of Labor or the EEOC, is also conduct that is protected from retaliation at work. Retaliation at Work is Not Limited to Termination Perhaps more important than the definition of protected conduct is the definition of retaliation itself. Many employees simply don’t realize that any form of retaliation at work is illegal and actionable—it’s not necessary that an employee lose her job. As the Supreme Court has recently held, if an adverse action is severe enough that it would have “dissuaded a reasonable worker from making or supporting a charge of discrimination,??? that act is sufficient to support a retaliation claim. Pamela Wolf surveyed developments in case law on the issue, and she notes that the standard for retaliation at work is continuing to loosen. For instance, screaming and threats—even without any further adverse action—may be enough to constitute retaliation.  The simple temporal proximity of the adverse action to the protected conduct may be enough to get to trial, which is especially significant, as bad intent can often be very difficult to prove. Finally, the Supreme Court recently found that you can now bring a claim for retaliation even if you are not the person engaged in protected conduct, provided you are associated with that person. In that case, Thompson v. North Am. Stainless,a worker who was fired after his fiancé complained about sexual harassment had a claim for retaliation at work even though he made no complaint himself. Employees too often feel powerless to challenge hostile work environments, harassment, or the failure to pay overtime. Workers understandably fear being cast into a difficult job market, and conclude that the devil they know is better than the devil they don’t. An extensive legal framework exists, however, to protect employees against the very retaliation they might fear, and a deeper understanding of those protections may make employees more comfortable standing up to abusive practices.

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