YES! Non-Compete Agreements are generally enforceable in New York. It is in essence a chess game between the employer and employee and/or the employer and their competitors. Unfortunately, many employees are pawns in the “game” and are harmed because they are not educated on their rights and options.

Non-Compete provisions can be found in a stand alone Non-Compete Agreement or within various documents, including, among others: Employment Agreements, Severance Agreements, Confidentiality Agreements, Relocation Agreements, Workplace Invention Agreements, Bonus Agreements, Deferred Compensation Agreements, Retention Agreements, etc. .

A Non-Compete Agreement is a legally binding contract and should be reviewed by an attorney prior to your signing the document. it may be presented at the onset of your employment in your onboarding documents, during the tenure of your employment or upon your voluntary or involuntary departure from employment.

Employers may use a Non-Compete Agreement to bind employees and to protect against their employees going to work against them for their competitors.

Employers may have an employee sign a Non-Solicitation Agreement. This can, in fact it often is, the same as a Non-Compete Agreement.

Some employers require all employees to sign a Non-Compete Agreement and some employers only have key employees sign these documents.

Non-Compete Agreements may impact your ability to transition to a new job. You may be required to disclose the terms of your Non-Compete to a potential new employer (even if the job is not the same or similar) and this may prevent you from obtaining new employment.

Any employees who receive a Non-Compete Agreement should have the agreement reviewed by an attorney prior to signing to determine if there are any terms within the agreement that can be removed or negotiated.

Any employee departing from employment, voluntarily or involuntarily. should have the agreement reviewed by an attorney prior to making any transition to understand their rights and obligations and to determine if the terms of the agreement apply to potential new employment and/or if there is any room for renegotiation of the terms upon the employee’s departure. A non-compete provision may effectively put the employee on the bench for a period of time and impact your ability to obtain new viable employment.

If you have received or have already signed a Non-Compete Agreement or an agreement that contains a non-solicitation or non-competition provision(s) contact Sheree Donath to have your document reviewed.

A Retention Agreement is often given to valued employees to motivate them to stay with the employer during a period of transition or turmoil at the company.

The retention agreement may offer, among others, a bonus, enhanced severance, and/or equity if the employee remains employed with the employer for a set period of time.

Employees receiving a Retention Agreement will be required to sign it and return it to their employer. Before doing so, employees should have the Retention Agreement reviewed by an attorney to ensure that they will actually receive what is being offered to them if they meet the terms.

Specifically, the employee should understand the following issues, among others, that may or may not be addressed within the Retention Agreement:

• the time period that the employee must remain with the employer
• what happens if there is a change of control
• has a change of control been defined
• who is responsible to make payment of the bonus, severance, equity, etc. that is being offered
• what happens if the employee is terminated without cause during the retention period – will the employee still receive the reward?
• what happens if the employee seeks to resign or leaves with good reason- will the employee still receive the reward?
• when will the employee receive the retention compensation and/or benefits
• is the employee’s employment guaranteed during the retention period or is the employee considered at will

Retention Agreements generally occur when an employer is considering a sale of all or part of the business, or if there has been a mass exodus of employees departing from the company.

Employees may also consider requesting a retention bonus when there are periods of instability at their employer.

Depending on the value that they offer to the employer, employees may also be able to negotiate the terms of the Retention Agreement prior to execution.

A Retention Agreement is a legal and binding document. It should be reviewed prior to execution. For more information on these agreements or if you want to have your retention agreement reviewed, contact Sheree Donath to schedule a consultation.

The Faithless Servant Doctrine allows employers to claw back compensation paid to an employee, including salary, commissions and/or bonuses.

The Faithless Servant Doctrine may apply if the employer can show that the employee, during the course of their employment, engaged in repeated acts of disloyal conduct. Examples of disloyal conduct that have been found to be actionable are generally acts against the employer’s interest such as embezzlement, improperly competing against the employer and/or usurping business opportunities. In order to give rise to a claim under the Faithless Servant Doctrine, the employee’s conduct is generally such that it substantially and materially impacts the employer’s business or rises to the level of a breach of the duty of loyalty or good faith.

If the Faithless Servant Doctrine is found to apply, an employee may be required to forfeit all of their compensation (salary, commissions and/or bonuses) received during the time period that the employee engaged in such conduct, regardless of whether the employer can prove damages.

To find out more about the Faithless Servant Doctrine and how this may affect your employment and business opportunities or to find out what your rights and obligations are to your current employer click here.

Workplace bullying comes in the form of:

• Verbal abuse.
• Offensive behaviors that are threatening, humiliating or intimidating.
• Work interference or sabotage that prevents work from getting done.

Workplace bullying can be by one person or by a “mob” (this generally includes peers of the offender or those that think that assisting in the bullying will gain them favor with the perpetrator).

Generally, “bullies” in the workplace are in high power positions or have the ability to influence working conditions for the employee. In most instances it is a supervisor and subordinate relation. However, it does not have to be a person in a power position that bullies another employee. Bullies can be the employee’s peer who is trying to gain favor, an employee who’s work may be subpar, an employee who feels insignificant or valueless. Bullies take actions to make others feel bad in the attempt to make themselves seem more important.

Some examples of common tactics used by workplace bullies are:

• Falsely accusing someone of errors the person didn’t actually make.
• Hostilely staring at an employee or nonverbal intimidation.
• Unjustly discounting the person’s thoughts or feelings in front of others.
• Using the “silent treatment.” Refusing to acknowledge the person or say hello or goodbye.
• Making up rules for specific people.
• Disregarding and discrediting satisfactory work.
• Harshly and constantly criticizing the person.
• Starting, or failing to stop, destructive rumors or gossip about the person.
• Encouraging people to turn against the person being tormented.
• Singling out and isolating one person from other co-workers, either socially or physically.
• Yelling, screaming or throwing tantrums in front of other colleagues to humiliate someone.

Donath Law, LLC has experience raising and resolving situations in which employees are being bullied in the workplace. While the laws have not been passed to protect most targets of bullying, there are creative alternatives to assist employees in protecting their employment and fighting back against bullies. Bullying may also fall under laws, among others, that protect against discrimination, sexual harassment, retaliation and breach of contract.

Some employees being bullied feel they have no option but to resign from their job. There are other options.

Don’t continue to be a victim! For more information or to find out how we can better assist you with your personal situation, contact Sheree Donath.

Employees always question what it means to be Terminated With Cause versus Terminated Without Cause. The quick response, is that a Termination With Cause generally means that an employee engaged in some kind of misconduct whereas a Termination Without Cause is based upon a decision of the employer to end the employee’s employment.

Terminations With Cause generally occur in some of the following situations, including among others:

• violations of company policy
• insubordination
• fraud
• embezzlement
• conviction of a crime
• violence or threated violence at work
• falsifying records

At times, Company’s try to claim that performance can be a reason for a Termination with Cause. However, poor performance or not meeting expectations is not necessarily Cause (i.e. gross misconduct) as defined above, but can be used to deny an employee benefits or severance that the employee may be entitled to receive had the employee been terminated without cause. Sometimes, employees who are about to be Terminated With Cause may be given the option to resign from the job.

Termination with Cause has substantial ramifications and could result in an employee losing stock options, equity, deferred compensation, severance, bonuses, unemployment benefits, etc.

Termination Without Cause is how most employees are terminated, as most employees are at-will employees. Examples of Termination Without Cause are layoffs, reductions in force, job eliminations, downsizing, etc. Terminations Without Cause generally afford employees with all the benefits an employer has promised through contracts and policies. Many employees Terminated Without Cause also receive severance benefits.

Regardless of whether an employee is Terminated With Cause or Terminated Without Cause the employee is still obligated to adhere to contracted restrictions on the employee’s future employment, including, Non-Compete Agreements, Non-Solicitation Agreements, Workplace Invention Agreements, Confidentiality Agreements, etc. Understanding what you may be entitled to receive when you are terminated may be confusing. Click here to schedule a time to speak with Sheree Donath to discuss your employment situation and to obtain guidance on your specific situation or if you believe you may be terminated soon.

Many companies enter into consultancy agreements rather than employment agreements with their workers. Why? At times, it is because a treasured member of the organization is retiring or departing, but is full of knowledge and it would be best for the company to still have access to such value. At times, it is part of a severance arrangement and at times, it is project-based. For whatever reason the company and individual decide to enter into a consultancy agreement, the agreement should be clear and set forth specific terms regarding the arrangement.   So what terms are generally within these documents or what terms should you expect to see? Below are a few provisions (not an all inclusive or required list) that may appear in your agreement: – a description of the scope of services to be performed; – the length and term of the engagement; – that the individual will be an independent contractor and not an employee and therefore not entitled to employee benefits and responsible for taxes on payment; – timing and method of payment; – tax indemnification; – liability indemnification language; – a confidentiality and proprietary information provision(s); – workplace invention/ assignment provision(s); – termination of agreement and notice requirements; – malpractice and other insurance issues; – standard contract provisions: choice of law; integration clauses, successors and assigns, modification of agreement, etc.   If you have received a consultancy agreement or are in the process of negotiating the terms of the agreement, you should seek legal guidance and counsel. It is also important to understand how this new arrangement may be affected by agreements you may have previously entered into with other companies or former employers. Additionally, any agreement should be reviewed prior to execution to ensure that you are protected, that all necessary provisions are included and that you understand the terms and your obligations.   If you would like such legal counsel or want to understand what responsibilities you have under your agreement should you end the arrangement, contact Sheree Donath by clicking here to schedule a time to discuss your situation.

Employees are generally concerned about filing a workplace complaint. The two most comment questions that employees have are: Will my complaint be confidential? And will I be retaliated against for reporting my concerns.

While employers should have clear policies for complaint reporting, many don’t. This makes the filing of a complaint even more scary for the employee who got up the nerve to finally report the concern that is personal to the employee.

What is even worse, is when my clients report that their employers try to discourage the reporting of complaints and do not take any action to eliminate the Complainant’s concerns. 

So what should the employee know and do to file a complaint and have that complaint properly investigated?

First, employees should know that if they make a complaint, it cannot always be kept confidential. Why? Because in order to investigate the complaint, the employer will need to speak with the person(s) that you are alleging engaged in the wrongdoing, as well as any potential witnesses.

Second, the employee should document their complaint so that there is a clear record of the complaint. In my practice I have come across many employers, for various reasons, who do not document complaints raised by their employees. The employee should protect themselves and make sure that the report is documented, either using the employer’s complaint form, if any, or through email.

Third, the employee should provide relevant documents. Any documents provided should also be retained by the employee. It is helpful to submit any relevant documents by email, so that there is a record of the documents and the employee’s sending them.

Fourth, the employee should provide names of possible witnesses. To assist in the investigation, the employee should provide the names of others who may have witnessed the subject(s) of the complaint(s) or may have been subjected to the same or similar conduct.

Fifth, the employee should ask the expected timing of the investigation. It is helpful to know if the investigation is expected to take a few days or a few months. This may be dependent on the specifics of the complaint itself and how many people may have been involved or have information related to the employee’s concerns.

Sixth, the employee should ask if there will be a written finding and will the employee receive a copy. Many times the company will verbally provide a verbal finding to the employee. However, the employer may be preparing a written statement for their records. The employee can request a written finding or put the finding in writing on their own.

Seventh, the employee should request interim action be taken during the investigation, if warranted. Depending on the nature of the complaint, interim action may be sought (i.e. paid or unpaid leave of absence for the victim or accused; transfer, etc.).

Eighth, the employee should seek confirmation that the employee will not be retaliated against for making this complaint. Employees should not be subject to retaliation for coming forward and most employer’s have anti-retaliation policies. However, it is helpful for employees to reiterate their concerns and have the employer put this promise of no retaliation in writing.

For assistance in reporting workplace complaints and/or guidance in understanding the process or with the outcome, contact Sheree Donath at (516) 804-0274 or at sheree@donathlaw. 

Around Thanksgiving employees should take time to decide if they are thankful that they simply have a job or for the job itself. That is, are you thankful for the following: 

·     having a job

·     getting a paycheck

·     receiving benefits

·     the people you work with

·     the work that you are doing

·     the opportunities that the job brings

If you are simply thankful to have a job and get a paycheck then it may be time to explore your options. Is it time to seek a promotion? Is it time to look for a new job or a new career path? What can you do to bring about change that will make you happy to go to work each day?

Thanksgiving is a time for reflection. What is it that you truly want from your job? Can this be accomplished at your current employer? If so, how can you seek or seize the opportunities that you want to obtain? What are the next steps? What is it you are looking for (i.e. promotion, more money, flexible arrangement, etc.).

If what you are seeking to obtain is not available at this job, it is time to contemplate next steps such as seeking new employment, returning to school, etc. However, if you do decide that new employment is what you want, we do not recommend making hasty decisions like resigning from your current job without a new job commitment. For example, resigning your job will generally preclude you from getting unemployment benefits and depending on you situation you may lose deferred compensation and be subject to a non-compete, among others.

For guidance on navigating your current situation, seeking to make changes in your present employment or discussing a transition out of your job contact Sheree Donath at (516) 804-0274 or at Sheree@DonathLaw.com. 

The New York State Election Law provides that employees who are registered voters that do not have sufficient time to vote, outside of working hours, can take up to two (2) hours of paid time off from work to vote.

However, if an employee has four (4) consecutive hours either before or after work, when the employee can vote, then the employee is not entitled to paid time off to vote. The law provides that four (4) consecutive hours when the polls are open and employee can vote (without interfering with their job) is considered sufficient time for the employee to vote.

If the employee has less than four (4) hours before or after work to vote, then the employee can take time off, at the beginning or the end of their shift, to allow them sufficient time to vote. The employer and employee can also mutually agree for the employee to take time off during the work-day to allow the employee to vote.

Employees are to be paid for the up to two (2) hours of time they may take to vote.

In order to comply with this law, employees are required to provide notice to their employer of the need to take voting leave “not more than ten nor less than two working days before the day of the election”.

Employers cannot penalize an employee for requesting or taking voting leave.

For more information regarding your rights in the workplace contact Sheree Donath at (516) 804-0274 or Sheree@DonathLaw.com