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In no event should any reader or questioner consider our responses to these questions to be legal counsel or advice, but only material to be considered interesting, informative and of educational value. Legal counsel and advice is given only to those with whom we have entered into a formal attorney-client relation by means of a written retainer agreement, signed by both the client and a partner of our firm.
Those who wish to submit questions to us may do so by using the Guest Book feature of our website, or by submitting questions by fax at (212) 757-5002.
Those who submit questions do so on the following two express conditions:
- a. "I understand and agree that the responses to questions
appearing in this Web site are not legal advice or counsel, but only
observations on general principles of law. I will not rely on this
information, but will contact legal counsel licensed to practice law
in my own locality if I need legal advice."
- b. "I consent to the publication of my question in this Web
site, and in other publications, without additional form of approval."
The following are some of the most interesting and insightful questions recently submitted to us, and our responses to them:
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Q: I have recently accepted a job offer from a company that offers me a lucrative salary. However, now I found that I don't really like the job. I was mostly attracted by the pay and persuaded by the recruiter who found me the position. I have signed the offer letter that does not have any conditions.
Is it illegal for me to back out from this offer? |
A. You state that the "offer letter" you signed does not have any terms or conditions. The critical item for you would be a provision stating a set period of time — say, one year — during which you agreed to provide services, and during which your employer agreed to pay you. Without that critical provision, your employment is terminable by either you or that employer at any time.
If, however, your employer spent significant amounts of money to get you to work for them — such as a "sign-on" bonus to you, or relocation monies to pay for your moving to their city, or even a recruiter's fee — they may have an enforceable claim against you for these sums.
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Q:
My current employer has a bonus program. To be eligible,
you must be employed on the last day of the half (bonus
is paid twice a year).
I am contemplating leaving to take another job. If I give notice, in writing, that I am leaving, with my last day to be the last day of the half, can my employer terminate me earlier, thus preventing me from receiving the bonus that I otherwise would have received?
I have no written employment contract, and my state (North Carolina) has "employment at will." |
A: In your circumstances, and with your contemplating giving notice of intention to leave, I surely would expect your employer to terminate your employment and thus, deny you your bonus.
Bonus programs are designed primarily to motivate. Since you have no written contract protecting you in this circumstance, and your employer would have no reason to further motivate you once you've given notice, I estimate your chances of receiving your bonus as somewhere between slim and none.
Why don't you do what most people do in your situation? Accept your bonus, deposit the check, and when it clears, give notice.
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| Q: I am a salaried employee and sometimes work more than 60 hours per week. Am I entitled to time-and-a-half comp time for this, or any other compensation, or just straight comp time? |
A: Believe it or not, giving "comp" time instead of paid time is illegal under the federal Fair Labor Standards Act, unless your employer is a state or local government unit or agency. Private employers are not permitted to give time off instead of wages. The popularity of "comp" time arrangements belies their illegality.
If by chance your employer is indeed a state or local government unit or agency, your "comp" time must be given at one-and-a-half times the number of hours you worked, in excess of 40 hours in a work week.
Incidentally, even if you signed an agreement waiving your
right to overtime wages, such an agreement is void by law.
You can maintain a claim or lawsuit for back overtime wages
even if you signed such a waiver agreement, and even if
you received "comp" time. |
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Q:
I am a freelance advertising copywriter and work for various
companies during the year, almost always working on premises,
observing the firms' normal business hours and work week.
Most often, these companies treat me as an independent contractor, give me no benefits, withhold no taxes and report my income on a 1099 form. I understand this practice is controversial. What are my rights here? |
A:
The critical difference between an employment relation and
an independent contractor relation is the degree of control
— who decides if, where, when, and how the work gets done.
In an employment relation, the employer may mandate how
work is performed, while an independent contractor generally
determines this on his or her own.
The second critical difference is: How many employers does the individual serve? Employees generally look to one employer for compensation, while an independent contractor looks to two or more.
Conceivably, you could claim that you are really an employee, and thus due — retroactively — employment benefits provided other employees, including the considerable sum represented by the employer's required contribution to your Social Security account.
However, I believe any such claim would likely fail, because, as you say, you work for "various companies during the year". This is indicative of an independent contractor status. |
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Q:
I have been employed in New Jersey with the same company
for the past 24 years. My current division allows retirement
at 60. I'm 58. Recently, I tried transferring to another
division of the same company, also in New Jersey (that is
slated to eventually be shut down). The division offered
me a position that would allow me to retire at 55, with
33 weeks severance pay. However, my current division would
not allow me to transfer, saying I was too valuable.
There is no written transfer policy in place at my current
division. This division has allowed other higher-level employees
under age 40 to obtain financially beneficial transfers
when requested.
Do I have a case for discrimination?
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A: The facts and circumstances you describe seem to portray what the law calls a prima facie case of age discrimination — that is, that the employer is denying you a valuable employment right or benefit, but is providing such benefits to others under the age of 40, apparently for no good reason.
Your prima facie case, however, may be defeated if your employer can demonstrate that it had a good, business-related reason for its actions. If you are critical to the proper functioning of your division — because of some particular expertise, skill or knowledge — that fact may be enough to constitute a sufficient business reason to deny you the transfer, and thus deny your prima facie case of age discrimination. |
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| Q: With the tremendous growth of the Internet and intranets for business use, does an employer have a right to ask for and receive photos of each employee for placement in its corporate Web site? Does an employee have the right to say no for the sake of individual privacy? |
A:
I know of no law or case-law doctrine that would prohibit
an employer from requiring your picture to be placed with
others on its company Web site.
A few guidelines would seem to be in order, though.
First, the company would need a reasonable business purpose
for its requirement; it could not be intended to embarrass
or humiliate you.
Second, it could not be a required photograph that shows
you partially clothed, or in an intimate circumstance,
as these requirements would surely violate your reasonable
expectations of personal privacy.
Third,
the requirement could not be motivated by an illegal act
of prohibited discrimination.
It is not uncommon for companies to disseminate photographs
of employees so that customers know in a more personal
way the people they speak to by telephone. My own insurance
agent does this, and it makes me more comfortable in dealing
with sales and service representatives.
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| Q:
Is it illegal to read employees' E-mail messages? |
A:
In matters of employee-privacy concerns, the primary factor
most courts consider is whether, and to what extent, the
employee has a "legitimate expectation of privacy."
This is generally defined as the reasonableness of your
belief that your object of concern (here, your E-mail messages)
was safe from the eyes and ears of your employer.
In turn, how reasonable a belief you have is determined by both (a) your control over your object of concern, and (b) your employer's legitimate need to look at your object of concern.
What does all this mean to you? If your computer is locked,
and only you have the key, you have a legitimate expectation
of privacy, and an enforceable right to it (i.e., you could
sue your employer). On the other hand, if many people have
access to your computer on a regular basis, your right to
privacy of your E-mail is doubtful.
Also, if your job is such that urgent, valuable or crucial
information or E-mail messages at times come across your
monitor screen, and your boss's business depends on them,
your legitimate expectation of privacy is again doubtful. |
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| Q: I signed a non-compete agreement before I started with my current employer. The agreement says that I cannot work for another (company) doing the same type of work within 100 miles, for 90 days (after leaving my current job). How solid are these type of documents? I have heard many people say that non-competes never hold up in court.
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A:
Non-compete agreements (often called covenants against
competition) are agreements under which the employee agrees
not to work for a company which competes with his employer
after his present employment terminates. These agreements
are utilized to ensure that valuable company practices,
policies, plans and secrets do not fall into the hands
of competitors.
While courts are showing increasing reluctance to enforce
these agreements if they appear unusually burdensome or
restrictive to the employee's ability to make a living,
those who do not believe that these agreements are enforceable
are seriously mistaken. In fact, where money, some advantage
or other legal "consideration" is given the
employee in exchange for his or her signing the document,
many courts enforce them quite strictly.
There are no formal rules, but each case is reviewed for
its own unique facts, circumstances and context. The factors
frequently seen set out in written court decisions include:
- geographic scope;
- time duration;
- amount paid for signing;
- burden on employee's ability to make a living, or on public assistance;
- actual threat posed by violation;
- whether the employer honored all of its obligations to the employee.
As a general matter, I would not view the 90-day time period (you spoke of) to be particularly burdensome or restrictive.
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| Q:
I have been a contract employee for a large company for
about 10 months (and now there) is possibility to change
my position to a permanent one. If I am paid $35 an hour
as a contractor, what salary should I ask for (to assume)
the same position as a permanent employee? By the way, the
$35 per hour is paid through a (temporary-employment) agency.
I don't know how much my company pays the agency (for my
services). |
A: I don't believe there exists any general rule of thumb by which you can come up with a good estimate or starting salary for a full-time, permanent employee based on the hourly price paid to a temp agency for those same services. There are just too many variables.
The margin, or profit, of temp agencies varies by the type of services provided, from one region to another, even by whether the paying customer (that is, the employer) is large or small, a regular customer or not, and on many other variables as well.
I think your best route to determining a good starting salary
is to look over the want ads, speak with recruiters and
human resource personnel, and to speak with others who are
presently employed in your area of expertise and in your
city. Then factor in your level of expertise, skills and
special skills. |
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| Q: If I know that I'm going to be laid off as part of a group, can I negotiate my own severance package with the company, or am I stuck with what they give me? |
A:
Our office specializes in the negotiation of severance packages,
in varied industries and locations around the country. If
there is one message we stress to each and every one of
our clients, it is that severance is extremely negotiable,
even in a large downsizing, and even when human resources
takes the position that the severance offer is "written
in stone," that is, non-negotiable.
Every person has different circumstances in their lives — including their personal and family lives — and the needs of each person in severance are therefore different. We urge our clients to assess their needs in severance — for compensation continuation, relocation, agreed "departure statement,"
etc. — and to request that their severance package specifically address those very needs. No request is off-limits; anything can be requested, so long as the request is tactfully and respectfully made.
Our clients are continually surprised to learn how negotiable severance packages are. |
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| Q: I worked for (one company) for almost 30 years. When I hired in, the policy was for free medical after 30 years of service. Now they claim in the back of the benefits book, there is a disclaimer that all benefits are subject to change without notice, so I am out with no medical coverage, other than COBRA. Any thoughts on this?
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A: Health-care coverage is one of those employment benefits limited by the company's health-care policy; no one is legally entitled to health-care coverage unless their employer promises it to them in their company's official health-care plan.
As a general rule, companies are free to change their health-care
plans — in fact, even to eliminate health-care coverage
as a benefit — provided that they do so in a nondiscriminatory
way.
Promises made during previous years about future health-care
coverage for retirees are, sadly, commonly broken by employers
seeking to cut overhead costs. But bear in mind that reductions
or eliminations in health-care coverage are similarly affecting
non-retired employees as well.
The one significant exception to this general rule allowing employers to change health-care plans is that, if your employer set aside funds to cover the costs of retiree health-care coverage, that policy is considered a "vested plan" under ERISA, the federal Employee Retirement Income Security Act.
While ERISA does not require that an employer set aside
funds for retirement or health-care plans, once the company
does so, ERISA requires that the company administer and
carry our the plan fairly.
Therefore, if your company's original health-care plan until
1984 was a vested plan, you may have the right to sue your
employer in federal court for its failure to provide the
benefits promised. I urge you to speak with the human resources
director of your former employer about this. |
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Email: Info@ExecutiveLaw.com
Copyright © 2011 Alan L. Sklover
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