Questions Answered by James Francis Barna Esq

Q: Can i sue a company

2 Answers | Asked in Employment Law and Employment Discrimination for New York on
Answered on Jul 31, 2018
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.

Q: h1b: non compete: what happens to h1 state in garden leave.

1 Answer | Asked in Contracts, Employment Law and Immigration Law for New York on
Answered on Mar 26, 2018
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...

Q: Is there loopholes for people working off the book?

1 Answer | Asked in Employment Law for New York on
Answered on Feb 15, 2018
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.

Q: If you quit your job while on short term disability is your employer required to pay out for accumulated vacation time?

1 Answer | Asked in Employment Law for New York on
Answered on Feb 14, 2018
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.

Q: Can an employer offer severance to union employees while no offering anything to the nonunion employees?

2 Answers | Asked in Employment Law for New York on
Answered on Feb 1, 2018
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.

Q: Potentially moving business to a different state

2 Answers | Asked in Tax Law for New York on
Answered on Jan 18, 2018
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.

Q: Took a low pay entry level job. Turns out I am also the manager, solely responsible for all staff & operations. Legal?

1 Answer | Asked in Employment Law for New York on
Answered on Nov 16, 2017
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.

Q: Can a company/organization offering a personal training/coaching credential barre me due to criminal allegations?

1 Answer | Asked in Employment Law and Criminal Law for New York on
Answered on Oct 30, 2017
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....

Q: If a manager creates an unequal metric for demotion, does it constitute discrimination? Why or why not?

1 Answer | Asked in Employment Discrimination and Employment Law for New York on
Answered on Oct 30, 2017
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...

Q: This morning I got fired from work due to the assumption of taking marijuana plants from an adjacent property to work.

1 Answer | Asked in Employment Law and Employment Discrimination for New York on
Answered on Oct 21, 2017
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.

I represent employees in Upstate New York.

Q: My wife works at Lombardo's Bridie Manor and my boss The Owner Lawrence Lombardo takes 75% of Gratuity from wait staff.

2 Answers | Asked in Employment Law for New York on
Answered on Oct 10, 2017
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.

My office serves...

Q: 8 months pregnant,worked there for 10 months in (NYS), employer informed me that I have 6 weeks or be termed. Legal?

1 Answer | Asked in Family Law and Employment Law for New York on
Answered on Oct 9, 2017
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.

Q: In NY State, in the public sector unionized workplaces, how do the parties (workers and employers) enforce their rights?

1 Answer | Asked in Employment Law, Gov & Administrative Law and Government Contracts for New York on
Answered on Oct 9, 2017
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...

Q: FMLA and Workmass Compisation

1 Answer | Asked in Workers' Compensation and Employment Law for New York on
Answered on Oct 9, 2017
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.

Q: I was wrongfully terminated with retaliation. Can i file a charge against the ex employer and Union?

1 Answer | Asked in Employment Discrimination and Employment Law for New York on
Answered on Oct 9, 2017
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...

Q: Is it legal for an employer to discriminate against me (or not deal with sexual harassment against me) under Title VII?

1 Answer | Asked in Employment Discrimination for New York on
Answered on Oct 9, 2017
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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