James Francis Barna Esq's answer It is illegal to hire or refuse to hire due to national origin. It violates both state and federal nondiscrimination laws. I suggest you contact an employment attorney.
James Francis Barna Esq's answer You are asking very fact specific questions that implicate both employment law and immigration law. The level of detail of your questions reminds me of a law school exam question.
Online forums by their very nature are only appropriate for general questions. More specific questions like yours require a lawyer's paid expertise.
You need to contact an immigration lawyer with employment law experience, or an employment lawyer with immigration experience. Don't risk online...
James Francis Barna Esq's answer This is an interesting question that points out the inherent culture of corruption in New York. Working off the books is always illegal both for employers and employees. In fact, having employees work "off the books" is a criminal violation, and also violates New York tax laws. No employee should work "off the books." There is no loophole.
James Francis Barna Esq's answer New York law allows employers to specify whether vacation pay is paid out at the end of employment. If the employer has a policy (generally stated in its employee manual) that vacation pay is not paid upon ending employment then the employer does not need to pay accrued vacation pay. If this policy is absent, then the employer is required to pay accrued vacation pay.
James Francis Barna Esq's answer This is the power of a labor union. When an employer eliminates union jobs, the employer must negotiate the effects of the job elimination, and frequently awards severance. With nonunion employees, the employer does not need to provide severance. The employer is not required to treat union and nonunion employees similarly.
James Francis Barna Esq's answer Wow. Too many issues to answer in a free online forum. You need to sit down with your business accountant, and with a business or employment attorney to go over these issues.
James Francis Barna Esq's answer There is nothing particularly wrong from a legal standpoint. The position is not what was advertised, which happens often. Your choices include trying to get your employer to alter the duties of the job, trying to make a considerate exit from the position, or just quitting.
James Francis Barna Esq's answer You will need to contact an attorney due to two considerations. In New York, there is a statute that deals with discrimination against people due to their criminal history. New York has a general maxim that your conviction in the past should not affect your opportunities for future advancement. This statute may provide you some relief.
In addition, if you have been conviction-free since that PA charge, you may want to pursue whether that conviction can be expunged from your record....
James Francis Barna Esq's answer Regrettably, what you describe is unfairness, and a business using evaluation criteria that are not aligned with employee and company goals.
To be discrimination with regard to the the employment laws the evaluation metric would need to disadvantage a category of employees based, for example, on their race, sex, national origin, religion, age, disability, sexual orientation or offender status. Unfairness to disadvantage certain categories is discrimination. Unfairness not intended to...
James Francis Barna Esq's answer You don't have any sort of wrongful termination action against your employer. The courts have no tolerance for marijuana at work. If you have proof that you did not take marijuana to work, submit it to your employer and you may get your job back. Otherwise, more information would be needed to make an assessment.
James Francis Barna Esq's answer Under New York law, an employer is prohibited from taking a portion of employees' tips, or from requiring that they be shared with nonservice employees in a restaurant setting. There is one exception to this rule: With regard to a banquet or special function, the employer may share a percentage of the service charge with nonservice employees, and retain a small handling charge for the restaurant. Taking seventy-five percent of the gratuity is likely employer theft.
James Francis Barna Esq's answer Contrary to what many people think, New York does not have comprehensive employee leave protections, although a new leave law will take effect soon. On January 1, 2018, a paid-family leave law will take effect in New York, which will provide up to eight weeks paid family leave per year, and will guarantee reemployment. However, there is no employment protection in New York for a medical leave of six months.
James Francis Barna Esq's answer This is a very broad question that can be answered in many ways, but broadly in New York there is legislation (the Taylor Law) that sets up a system of procedures and protections for public sector employers and employees. Under this system, employees have to serve a probationary period after they are hired, but after that probationary period, most employees are protected by "just cause" job protections. That is, the employer must have an objectively good reason to terminate an employee, which...
James Francis Barna Esq's answer There is no requirement under the Family and Medical Leave Act to be compensated for time off for treatment. However, your employer is supposed to coordinate the protections of the FMLA and Workers' Compensation. If your employer chooses to compensate for FMLA leave, or if you have paid sick leave or vacation benefits that you wish to use for this leave, your employer is supposed to allow this.
James Francis Barna Esq's answer It depends on the reason for the retaliation. If you are retaliated against because you complained of illegal discrimination, harassment, or because of workplace safety violations, you may have a retaliation cause of action. If you are retaliated against for other reasons such as refusal to engage in unethical or illegal conduct, personal animosity, or other reasons not protected by law, there is no retaliation cause of action. If your union participated in the retaliation, it may be sued...
James Francis Barna Esq's answer While this language, and other "witch hunt" language against Communist Party members is archaic, it is contained in Title VII, and to my knowledge has never been abrogated by the Supreme Court on First Amendment grounds, so on its face, Title VII does not apply to Communist Party Members. However, the federal statute concerning registering Communist organizations was repealed in 1993, which could render this provision of Title VII moot, although it is open to interpretation.
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