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Questions Answered by James Francis Barna Esq

2 Answers | Asked in Employment Law and Employment Discrimination for New York on

Q: Can i sue a company

Can i sue a company because i was offered a job but once the employer found out i was not spanish he said he cant hire me and he only choose my resume because my name looked spanish

James Francis Barna Esq answered on Jul 31, 2018

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.

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1 Answer | Asked in Contracts, Employment Law and Immigration Law for New York on

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

I am on H1b and in 7th year of H1b (i140 approved, taking a long time due to country quota).

I have a non-compete of 1 year, where I can't join any competitor (current employer will pay me every month for 1year).

My employer says that NonCompetes are 'Post termination agreements'... Read more »

James Francis Barna Esq answered on Mar 26, 2018

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...
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1 Answer | Asked in Employment Law for New York on

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

James Francis Barna Esq answered on Feb 15, 2018

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... Read more »

1 Answer | Asked in Employment Law for New York on

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

Two weeks prior of my disability leave ended I notified my employer that I would not be returning. Is he still required to pay me for my accumulated vacation time?

James Francis Barna Esq answered on Feb 14, 2018

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... Read more »

2 Answers | Asked in Employment Law for New York on

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

Place of employment is closing at the end of this year. Rumor has it that the 11 nonunion employees aren't getting a severance package while the other 150 union employees are.

James Francis Barna Esq answered on Feb 1, 2018

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... Read more »

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2 Answers | Asked in Tax Law for New York on

Q: Potentially moving business to a different state

Have a Delaware C business in NYS. Maintain two residences, one in NYS and one in Mass. May end up establishing residency in Mass. Does it make sense/do I have to also move the business to Mass. I will still have remote employees 1-2 working remotely in NYS. I know i will be responsible for NYS... Read more »

James Francis Barna Esq answered on Jan 18, 2018

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.

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1 Answer | Asked in Employment Law for New York on

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

I’m a program manager coming off maternity leave. Qualified for management but need a job ASAP for the holidays. This job was described as entry level with some leadership duties such as keeping everyone on pace. The VP stressed “this is not a manager or supervisor position” which is why the... Read more »

James Francis Barna Esq answered on Nov 16, 2017

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.

1 Answer | Asked in Employment Law and Criminal Law for New York on

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

I was charged with a domestic violence charge in the state of PA. There is a newspaper article reporting the allegations. None of these allegations are true at all. I accepted and pled guilty to a misdemeanor charge in order to avoid more jail time to await a trial that would not go in my favor. I... Read more »

James Francis Barna Esq answered on Oct 30, 2017

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.... Read more »

1 Answer | Asked in Employment Discrimination and Employment Law for New York on

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

Employees A,B,C,D,E are Team Leads for the same department/company. They spend half their time individually making products and half on leadership tasks. Employee A is recognized and asked to help another department with leadership. His management agrees and reduces his time spent making products... Read more »

James Francis Barna Esq answered on Oct 30, 2017

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...
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1 Answer | Asked in Employment Law and Employment Discrimination for New York on

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

There is no cameras or proof of any actions. Do I have a case?

James Francis Barna Esq answered on Oct 21, 2017

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... Read more »

2 Answers | Asked in Employment Law for New York on

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

Is this legal?

James Francis Barna Esq answered on Oct 10, 2017

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... Read more »

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1 Answer | Asked in Family Law and Employment Law for New York on

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

I do not qualify for FMLA but stated I would be termed if I am not back in 6 months. Even a c-section is 8 week recovery. Can they legally term me while on Leave and collecting short-term disability?

James Francis Barna Esq answered on Oct 9, 2017

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... Read more »

1 Answer | Asked in Employment Law, Gov & Administrative Law and Government Contracts for New York on

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

James Francis Barna Esq answered on Oct 9, 2017

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... Read more »

1 Answer | Asked in Workers' Compensation and Employment Law for New York on

Q: FMLA and Workmass Compisation

I have a open worker's compensation case for my lower back. I have FMLA on my self for it due to pain. I loose time roughly 8hrs per week from my comp injury. Is it possible to get reimbursed for any of the FLMA time i use for my comp injury?

James Francis Barna Esq answered on Oct 9, 2017

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... Read more »

1 Answer | Asked in Employment Discrimination and Employment Law for New York on

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

James Francis Barna Esq answered on Oct 9, 2017

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... Read more »

1 Answer | Asked in Employment Discrimination for New York on

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

Title VII of the civil rights act seems to contain the following exemption for "unlawful employment practices":

(f) Members of Communist Party or Communist-action or Communist-front organizations

As used in this subchapter, the phrase “unlawful employment practice” shall not be... Read more »

James Francis Barna Esq answered on Oct 9, 2017

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,... Read more »

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