FREELANCE ISN'T FREE ACT

On August 28, 2024, the “Freelance Isn’t Free” Act added Article 44-A to the General Business Law to provide protections to freelance workers, including contractual requirements and a formal enforcement process.

The Department of Labor has developed a model contract that can be used to meet the contract requirements of the Freelance Isn’t Free Act.

If you are a freelance worker and you believe your rights under the law have been violated, you can file a complaint with the New York State Attorney General.

EMPLOYEE ELECTRONIC MONITORING

Starting May 2022, Civil Rights Law Section 52-a is effective. It provides that any employer who monitors or otherwise intercepts electronic mail or transmissions by an employee shall give prior written notice upon hiring the employee. The attorney general may enforce the provisions of this law and any employer found in violation shall be subject to a maximum penalty of $1,000 for each offense. The provisions of this law shall not apply to processes performed solely for computer maintenance and/or protection.

See Senate Bill S2628, signed by Governor on November 8, 2021.

NEW YORK WHISTLEBLOWER PROTECTION EXPANDING

On October 28, 2021, New York Governor Kathy Hochul signed this legislation enhancing the protections available to individuals who claim retaliation for reporting alleged employer wrongdoing: (S.4394A/A.5144A) amending NY Labor Law Section 740 (Section 740), which prohibits retaliation by employers against whistleblowers. It is effective 90 days after the Governor’s signature.

As per the Senate bill:

"SUMMARY OF PROVISIONS:

Section 1 of this bill amends the definition of "employee" to include
former employees and independent contractors; clarifies that the defi-
nition of "law, rule, or regulation" has included executive orders as
well as judicial or administrative decisions; clarifies the definition
of a "public body;" expands the definition of a retaliatory action to
include actions or threats to take actions that would adversely impact a
former employee's current or future employment and contacting or threats
to contact immigration authorities; provides protection to employees
whether or not they were acting within the scope of their job duties;
provides protection for employees who disclose or threaten to disclose
to a supervisor or to a public body an activity, policy or practice of
the employer that the employee reasonably believes is in violation of

law, rule or regulation or that the employee reasonably believes poses a
substantial and specific danger to the public health or safety; provides
exceptions for which employer notification is not required; extends the
statute of limitations to two years; provides the right of parties to a
jury trial; permits courts to order the relief of front pay, a civil
penalty, and the payment of punitive damages; and requires employers to
publish a notification of rights under section 740 of the Labor Law.

Section 2 of this bill requires health care employers to publish a
notification of rights under section 741 of the Labor Law and makes a
technical amendment.

Section 3 of this bill is the effective date.

 
JUSTIFICATION:

Labor Law Section 740, the state "whistleblower" law protecting private
employees, has long been restrictive. Current law provides that an
employee is only protected if they disclose to a supervisor or public
body an unlawful activity, policy, or practice of the employer that
creates and presents a substantial danger to the public health or safe-
ty, or that which constitutes health care fraud. Thus, an employee
reporting any myriad of illegal activities that do not directly affect
public health or safety, from sexual harassment to tax evasion, may be
at risk for being retaliated against by their employer with no
protection in law.

In addition, courts have held that for private employees, Labor Law 740
requires proof of an actual violation of law in order to sustain a cause
of action.

The above restrictions creates a discrepancy with how private employees
are treated in comparison to public employees, since Civil Service Law
75-b protects disclosure of "improper governmental actions" - or an
action in violation of any federal, state, local law, rule, or regu-
lation - where there is a reasonable belief of such action. Such
protections for public employees have been in place since 1986.
This bill corrects the above discrepancies by providing employees
protection for "blowing the whistle" on an activity, policy or practice
of the employer that the employee reasonably believes is in violation of
law, rule or regulation or that the employee reasonably believes poses a
substantial and specific danger to the public health or safety.

This bill further protects former employees, as an employer can continue
to retaliate against a whistleblower by harming them in their current or
future employment prospects, such as by attempting to blacklist someone
from the industry.

This bill also makes unlawful retaliation causes of action available to
independent contractors. The importance of this aspect of the bill has
been highlighted by workplace health and safety concerns during the
COVID-19 pandemic as well as the ongoing misclassification of employees
as independent contractors. This bill would ensure that these workers
have the ability to bring an action alleging wrongful retaliation as a
result of their whistleblowing activities.

The bill also permits the recovery of punitive damages if the employer
was found to violate the anti-retaliation law in a "malicious or wanton"
manner. This is consistent with existing law, which permits a court to
award punitive damages for only the most egregious types of conduct.

However, where such conduct occurs in the employment setting, there is
no reason not to afford victims with the same relief which is afforded
to the victims of such conduct in non-employment settings."

UNEMPLOYMENT BENEFITS - WHEN YOU HAVE TWO JOBS

If you hold several jobs (or have one job and side gigs) and you’re laid off from one, you may qualify for partial unemployment (MATTER OF VARGAS, 185 AD 3d 1339 - NY: Appellate Div., 3rd Dept. July 23, 2020) if you lost that job through no fault of your own. Some states award partial unemployment benefits based on your hours worked. However, some, like New York, base your benefit amount on the number of days worked during the week. 

But not any more. The NY DOL issued the following email yesterday:

Dear New Yorker: At Governor Cuomo’s direction, NYS DOL has changed the way partial unemployment benefits are determined for those who are working part-time. With the new regulation, partial unemployment insurance (UI) and Pandemic Unemployment Assistance (PUA) benefits will now be based on the number of hours you work in a week instead of the number of days you work. This update will go into effect for work completed during the benefit week of Monday, January 18, 2021 to Sunday, January 24, 2021 – and all benefit weeks going forward. The first time you certify under this new system will be on or after Sunday, January 24, 2021. Under the new approach, you can work up to 30 hours in a week and still receive some unemployment benefits if you earn $504 or less in gross pay. Instead of having your benefits reduced by 25% for each day you engage in part-time work, reductions will be based on hours worked. NYS DOL's certification system will still ask for the number of days you worked — you should use this chart to convert the hours you worked into the number of “days” to report. When totaling hours for each week, you should only count up to 10 hours per day. That means if you worked 12 hours in one day, you will only count 10 of those hours in your weekly total for that day. For more information and FAQs, go to on.ny.gov/partialui. Again, this certification change will go into effect starting on Sunday, January 24, 2021. Please screenshot and bookmark this page so that you can refer back each week when you certify. Thank you. Click here to opt-in to additional updates from the NYS Department of Labor.

FAILURE TO PAY ADDITIONAL COMPENSATION IS AN IMPROPER DEDUCTION FROM WAGES

ZINNO v. SCHLEHR, 2019 NY Slip Op 6232 - NY: Appellate Div., 4th Dept. 2019:

Plaintiff, a former employee of defendant medical group, commenced this action seeking to recover, inter alia, "additional compensation" that he earned during his employment with defendant. Pursuant to the terms of his employment agreement, plaintiff was entitled to receive an annual salary plus certain "additional compensation" if he exceeded certain thresholds, which were calculated based on the actual gross receipts attributable to plaintiff for services he rendered during his employment with defendant, including receipts received within 90 days following any termination of his employment.

After his employment with defendant terminated, plaintiff became entitled to additional compensation, which defendant was required to pay to plaintiff by June 21, 2016. Although defendant paid plaintiff in part, defendant admitted that it failed to pay plaintiff the entire amount owed for additional compensation. Plaintiff commenced this action asserting, inter alia, a cause of action for violations of Labor Law § 193(1) and alleging that, pursuant to Labor Law § 198(1-a), defendant is liable for the unpaid additional compensation, liquidated damages, interest, and attorneys' fees. Plaintiff moved for partial summary judgment on liability with respect to that cause of action, and Supreme Court denied the motion.

We agree with plaintiff that the court erred in denying his motion with respect to the issue of liability under Labor Law § 193(1), and we therefore modify the order accordingly. There is no dispute that the additional compensation owed to plaintiff constituted earned "wages" that were "vested and mandatory as opposed to discretionary and forfeitable" (Truelove v Northeast Capital & Advisory, 268 AD2d 648, 649 [3d Dept 2000], affd 95 NY2d 220 [2000]; see Labor Law § 190 [1]; see also Doolittle v Nixon Peabody LLP, 126 AD3d 1519, 1520 [4th Dept 2015]), and we conclude that defendant's failure to pay plaintiff by June 21, 2016 the full amount of the additional compensation that plaintiff had earned, as required by the parties' agreement, constituted a deduction from wages in violation of Labor Law § 193(1) (cf. Perella Weinberg Partners LLC v Kramer, 153 AD3d 443, 449-450 [1st Dept 2017]; Miles A. Kletter D.M.D. & Andrew S. Levine, D.D.S., P.C. v Fleming, 32 AD3d 566, 567 [3d Dept 2006]; see generally Doolittle, 126 AD3d at 1522). Thus, plaintiff met his initial burden of establishing "entitlement to judgment as a matter of law" with respect to that part of his motion (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Defendant failed to raise material issues of fact whether it violated Labor Law § 193(1) (see generally Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]).

In light of that determination, we further conclude that plaintiff is entitled "to recover the full amount of any underpayment, all reasonable attorney's fees, [and] prejudgment interest" (Labor Law § 198 [1-a]), and we therefore further modify the order accordingly.

WHEN YOU TERMINATE AN EMPLOYEE - PART 2

Recalling yesterday's post about New York Labor Law Section 195 (6) requiring written notice of termination, etc., it also provided that "Failure to notify an employee of cancellation of accident or health insurance subjects an employer to an additional penalty pursuant to section two hundred seventeen of this chapter." Let us look at that penalty.

New York Labor Law Section 217 (7):

"(a) Any policyholder who fails to comply with this section, shall forfeit to the people of the State a sum up to five thousand dollars, to be recovered by the commissioner in a civil action.  Where the policyholder is a corporation, trade association, joint stock association, incorporated or unincorporated association, the president, secretary and treasurer thereof shall be liable for any forfeiture.

(b) In addition to such penalty, where the failure to comply involves the failure to notify an employee of the termination of a group accident or group health policy pursuant to subdivision three of this section or the failure to remit premiums pursuant to subdivision six of this section, or the failure to provide an individual with notice of termination pursuant to subdivision six of section one hundred ninety-five of this chapter, the policy holder shall also be liable, in a civil action brought by the individual entitled to receive the notice of termination or exercise the right to continuation of coverage in a court of competent jurisdiction, to appropriate damages which shall include reimbursement for medical expenses which were not covered by the policyholder's insurer by virtue of his termination of the policy or failure to remit such premiums."

And this is in addition to the penalties under New York Labor Law Section 218 (1) which state, in effect, that an employer who violates the non-monetary provisions of Article 6 of the Labor Law (which includes Section 195), is subject to a maximum penalty of $1,000 for a first violation, $2,000 for a second violation and $3,000 for a third or subsequent violation.

WHEN YOU TERMINATE AN EMPLOYEE - PART 1

A written notice is required.

New York Labor Law Section 195 provides:

"Every employer shall:

6. notify any employee terminated from employment, in writing, of the exact date of such termination as well as the exact date of cancellation of employee benefits connected with such termination. In no case shall notice of such termination be provided more than five working days after the date of such termination. Failure to notify an employee of cancellation of accident or health insurance subjects an employer to an additional penalty pursuant to section two hundred seventeen of this chapter."

IF YOU WORK, YOU STILL GET TIME TO VOTE

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NYS Election Law 3-110

  1. A registered voter may, without loss of pay for up to three hours, take off so much working time as will enable him or her to vote at any election.

  2. The employee shall be allowed time off for voting only at the beginning or end of his or her working shift, as the employer may designate, unless otherwise mutually agreed.

  3. If the employee requires working time off to vote the employee shall notify his or her employer not less than two working days before the day of the election that he or she requires time off to vote in accordance with the provisions of this section.

  4. Not less than ten working days before every election, every employer shall post conspicuously in the place of work where it can be seen as employees come or go to their place of work, a notice setting forth the provisions of this section. Such notice shall be kept posted until the close of the polls on election day.

NEW YORK STATE BAN ON SALARY BACKGROUND CHECK

Governor Cuomo signed S6549 into law on July 10, 2019, which was designed by the state’s lawmakers to prevent wage discrimination among New York employees. In attempt to accomplish this goal, New York will now prohibit all employers from requiring applicants to provide their salary histories before they will be interviewed, employed, or promoted by the employer or as a condition to continued employment with the employer. Additionally, employers will be prohibited from retaliating against applicants who refuse to provide their salary history information.

 
   "Labor Law  § 194-a. Wage or salary history inquiries prohibited.       
    1. No employer  shall:
    a.  rely  on the wage or salary history of an applicant in determining
  whether to offer employment to such individual  or  in  determining  the
  wages or salary for such individual.
    b.  orally  or in writing seek, request, or require the wage or salary
  history from an applicant or current  employee  as  a  condition  to  be
  interviewed,  or  as  a  condition of continuing to be considered for an
  offer of employment, or as a condition of employment or promotion.
    c. orally or in writing seek, request, or require the wage  or  salary
  history  of  an  applicant  or current employee from a current or former
  employer, current or former employee,  or  agent  of  the  applicant  or
  current  employee's  current  or  former employer, except as provided in
  subdivision three of this section.
    d. refuse to interview, hire, promote, otherwise employ, or  otherwise
  retaliate against an applicant or current employee based upon prior wage
  or salary history.
    e.  refuse to interview, hire, promote, otherwise employ, or otherwise
  retaliate  against  an  applicant  or  current  employee  because   such
  applicant  or current employee did not provide wage or salary history in
  accordance with this section.
    f. refuse to interview, hire, promote, otherwise employ, or  otherwise
  retaliate against an applicant or current or former employee because the
  applicant  or  current  or  former  employee  filed a complaint with the
  department alleging a violation of this section.
    2. Nothing in this section  shall  prevent  an  applicant  or  current
  employee   from   voluntarily,  and  without  prompting,  disclosing  or
  verifying wage or salary history, including but not limited to  for  the
  purposes of negotiating wages or salary.
    3.  An employer may confirm wage or salary history only if at the time
  an offer of employment with  compensation  is  made,  the  applicant  or
  current employee responds to the offer by providing prior wage or salary
  information  to  support  a  wage  or  salary higher than offered by the
  employer.
    4. For the purposes of this section, "employer" shall include but  not
  be  limited  to  any  person,  corporation,  limited  liability company,
  association, labor organization, or entity employing any  individual  in
  any  occupation,  industry,  trade,  business  or  service, or any agent
  thereof. For the purposes of this section,  the  term  "employer"  shall
  also  include  the  state, any political subdivision thereof, any public
  authority or any other governmental entity or  instrumentality  thereof,
  and  any  person, corporation, limited liability company, association or
  entity acting as an employment agent, recruiter, or otherwise connecting
  applicants with employers.
    5. An applicant or current or former employee aggrieved by a violation
  of this section may bring  a  civil  action  for  compensation  for  any
  damages  sustained  as  a  result  of  such  violation on behalf of such
  applicant, employee, or other persons similarly situated in any court of
  competent jurisdiction. The court may award injunctive relief as well as
  reasonable attorneys' fees to a plaintiff who prevails in a civil action
  brought under this paragraph.
    6. Nothing in this section shall be deemed  to  diminish  the  rights,
  privileges,  or  remedies of any applicant or current or former employee
  under any other law or regulation or  under  any  collective  bargaining
  agreement or employment contract.
    7.  This  section  shall not supersede any federal, state or local law
  enacted prior to the effective date of this section  that  requires  the

  disclosure or verification of salary history information to determine an
  employee's compensation.
    8.  The department shall conduct a public awareness outreach campaign,
  which shall include making information available  on  its  website,  and
  otherwise informing employers of the provisions of this section.
    * NB Effective January 6, 2020"

WHEN CAN AN EMPLOYER RECOVER ATTORNEY FEES WHEN A WHISTLEBLOWER CASE IS DISMISSED

Berde v North Shore- Long Is. Jewish Health Sys., Inc., 2018 NY Slip Op 03955, Decided on June 6, 2018, Appellate Division, Second Department:

"The plaintiff commenced this action to recover damages for unlawful termination of employment in violation of Labor Law § 740. After years of discovery and motion practice, including two appeals in which this Court vindicated the plaintiff's right to proceed with this action (see Berde v North Shore-Long Is. Jewish Health Sys., Inc., 98 AD3d 932, 932-933; Berde v North Shore-Long Is. Jewish Health Sys., Inc., 50 AD3d 834, 835-836), the Supreme Court, following a nonjury trial, decided in favor of the defendant in a decision dated July 25, 2014. In an order dated October 21, 2014, the court awarded the defendant attorneys' fees and costs pursuant to Labor Law § 740(6) in the sum of $591,071.70. The court entered a judgment dated March 20, 2015, upon the decision and the order. In an order dated September 8, 2015, the court granted the plaintiff's motion [*2]for leave to reargue the award of attorneys' fees and costs, but upon reargument, adhered to its original determination. The plaintiff appeals from the judgment and the order dated September 8, 2015.

Although the decision of the trial court upon which the judgment was based did not state the essential facts (see CPLR 4213[b]), this Court has before it the complete trial record, which is sufficient to conduct an independent review of the evidence so as to make the requisite findings of fact (see Park E. Constr. Corp. v East Coast Mech. Servs., Inc., 133 AD3d 581, 582; Hugh O'Kane Elec. Co., LLC. v MasTec N. Am., Inc., 45 AD3d 413, 414; Atlantic Contr. Corp. v Hartford Acc. & Indem. Co., 155 AD2d 571, 572). " In reviewing a determination rendered after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts'" (Galbraith v Westchester County Health Care Corp., 140 AD3d 696, 697, quoting Furino v O'Sullivan, 137 AD3d 1208, 1209-1210). Upon our independent review, we conclude that the determination to dismiss the complaint was warranted by the facts presented at trial (see Hookman v Lenox Hill Hosp., 241 AD2d 333, 333). In particular, the weight of the evidence established that the defendant had a nonretaliatory justification for dismissing the plaintiff, as she had numerous conflicts with other hospital staff and failed to improve in that respect despite opportunities to do so.

Labor Law § 740(6) provides that a court, in its discretion, may award an employer attorneys' fees and costs if it determines that the employee's action is " without basis in law or in fact'" (Tomo v Episcopal Health Servs., Inc., 85 AD3d 766, 768-769, quoting Labor Law § 740[6]). Here, the trial record included testimonial and documentary evidence of the plaintiff's numerous complaints about ongoing sterility problems in the operating room, which problems arguably constituted a violation of applicable regulations and posed a present, substantial, and specific danger to patient health. The plaintiff and other witnesses testified that these issues arose hundreds of times over the relevant time period and were not seriously addressed until after the plaintiff finally complained to her supervisor's supervisor. The plaintiff's annual performance evaluations demonstrate that she met or exceeded expectations throughout her tenure as a nurse manager and, despite identifying areas for improvement, did not indicate a risk of dismissal until after she complained to upper management. While ultimately unpersuasive in light of the defendant's evidence, the plaintiff's action "cannot reasonably be characterized as being without basis in law or in fact'" (Lukose v Long Is. Med. Diagnostic Imaging, P.C., 120 AD3d 1312, 1313-1314, quoting Labor Law § 740[6]). The Supreme Court therefore improvidently exercised its discretion in awarding the defendant attorneys' fees and costs pursuant to Labor Law § 740(6)."

NEW YORK - ANNUAL WAGE STATEMENTS NO LONGER REQUIRED

From the Department of Labor website:

"On December 29, 2014, Governor Andrew M. Cuomo signed a bill eliminating the requirement that before February 1 of each year, employers notify and receive written acknowledgement from every worker about their rate of pay, allowances, pay day, etc. According to the signing statement, legislative leaders and the Governor have agreed to a chapter amendment to make this change effective immediately. Accordingly, given the pending enactment of this chapter amendment, the Department will not require annual statements in 2015.

Please note, businesses are still required to notify employees as required at the time of hire. "

NEW RULE ON EMPLOYMENT & SSNs

Effective December 12, 2012, all New York employers (except the state or its political subdivisions) are prohibited from requiring individuals to disclose or furnish their Social Security numbers (SSNs) for any purpose in connection with any activity. Employers are also barred from refusing any service, privilege, or right to individuals wholly or partly because they refused to disclose or furnish their SSNs. However, there are several exceptions to this prohibition.

See General Business Law § 399-ddd.

NEW YORK UNEMPLOYMENT INSURANCE - TERMINATION

This is just a reminder that when an employee is terminated, the right to Unemployment Insurance may not be the only legal issue that arises.

Here is a link to a recent article:

MSN CAREERS: Unfair dismissal: Has your employer broken the law?

EMPLOYMENT - BACKGROUND CHECKS

This issue has come up several times in recent consultations. I found an excellent discussion on this from the Privacy Rights Clearinghouse/UCAN and here is a cite to their discussion - you may have to cut and paste the cite into your browser:

http://www.privacyrights.org/fs/fs16-bck.htm

EMPLOYMENT DISCRIMINATION

By now you may have already read about Eric Favetta, a 31-year-old PetSmart employee, who said he was fired for "theft of services" after bringing his dog to work during an overnight shift he'd picked up as a favor to his manager. This story has had a happy ending - PetSmart offered him back his job. But sometimes, and I have witnessed this recently, an employer alleges misconduct for minor infractions under the guise of discrimination or changes the terms of employment that forces X employer to quit: in other words, the employer may believe that X employee should be terminated because of age, sexual orientation, race, religion, whatever, and that is against the law. So employer creates situations that causes X employee to be placed in a position where employee has no alternative but to quit or cause employee to be placed in a position where it is impossible for X employee to follow policy, directives, etc., and then is terminated for misconduct. Be forewarned. Discrimination is hard to prove, and in NY, there is a double benefit for the employer to engage in such conduct as a ruling of misconduct or voluntary separation without cause results in lack of unemployment benefits and, if the employer is denied benefits, that might be used as evidence for the employer in a subsequent discrimination suit or complaint, viz., there is no discrimination and either the Department of Labor and/or an Adminsistrative Law Judge and/or the Appeals Board and/or the Appellate Division, Third Department has ruled the employer quit or was engaged in misconduct.

EMPLOYMENT - BANKRUPTCY

Recently, on a LinkedIn legal group, I was involved in a discussion over a post made on JD Supra:

"Can my (private) employer fire me for filing for bankruptcy?
3 January 2010
The answer is No. It is plainly stated in the bankruptcy code that:
11 U.S.C. 525 . . .
(b)No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt— (1) is or has been a debtor under this title or a debtor or bankrupt under the Bankruptcy Act; (2) has been insolvent before the commencement of a case under this title or during the case but before the grant or denial of a discharge; or (3) has not paid a debt that is dischargeable in a case under this title or that was discharged under the Bankruptcy Act.

This may beg the question what a prospective employer can do when confronted with an applicant who has filed bankruptcy. Some commentators take the position that the answer whether discrimination on this basis is allowed is no. However, almost all of the cases that have interpreted this provision have ruled that it only applies to the debtor's current employer. In re Hardy, 209 B.R. 371, 374-376 (Bankr. E.D. Va. 1997); In re Merriweather, 185 B.R. 235 (Bankr.S.D.TX 1995); In re Briggs, 143 B.R. 438 (Bankr.E.D.MI 1992). But see In re McNeely, 82 B.R. 628 (Bankr. S.D. Ga. 1987)(applying Section 525(b) to service purchaser/independent contractor relationship). None of these cases are binding though, so the question is an open one. There are some other considerations if you are applying for a new job and concerned over this particular potential ramification of filing for bankruptcy. First, the ambiguity noted above may be enough to stop any employer from taking the chance of violating the law. Typically employers, and especially their counsel, like to take the safe road. Second, the percentage of employers that truly take action based on a credit report, even if they do check it, might be less than you think (I personally have never heard of someone not getting a job due to a prior bankruptcy). Third, an employer may prefer that a person had filed for bankruptcy and eliminated their debt, as opposed to continuing on with a significant debt load. They could be concerned about those with a greater incentive to steal. Who do you think is more of a risk to employ, a person who is probably debt free or someone struggling to carry a significant debt load? Finally, the pros and cons of a decision to file bankruptcy should be carefully weighed with competent counsel. There is wisdom in a multitude of counselors.
Contact: George E. Bourguignon, Jr.
(413) 746-8008
gbourguignon@bourguignonlaw.com"

I now realize that in a new job application, questions of disclosure would arise depending on the wording of the job application. Non-disclosure of the bankruptcy, if disclosure was required on the application and later discovered, may lead to a termination of employment (and remember that New York is an "employment at will" state) and an objection to the employee's filing for unemployment benefits may arise due to the failure to disclose. One Appeals Board case has held that a deliberate falsification of an application for employment constitutes misconduct within the meaning of the Unemployment Insurance Law if there is present injury or prejudice to the employer's interest. (A.B. 39,840-53; A-750-1244).

UNEMPLOYMENT INSURANCE BENEFITS - VOLUNTARY SEPARATION

I am awaiting a decision on a case on whether an individual quit or was fired. The Unemployment Insurance Law requires that a claimant voluntarily separated from employment be disqualified if the separation is "without good cause" (Section 593.1 (a)). The term "voluntary separation" as used in the statute means leaving employment of one’s own free will. Without going into details of the facts of the case, I point out that if you are an employee and are being discharged for any reason, you should never sign a document without it being reviewed by a lawyer as it might contain language that may hurt you in claiming benefits. If, after some meeting or altercation with your employer, you are unsure as to whether or not your employer has fired you, don't just pack and leave - check with your supervisor and perhaps one other so more than one individual has made it clear that you were fired. I have seen situation, now several times, where, after an altercation, employers have given unclear signals which the employee interprets as being fired; later the employer will state that the employer was not fired but quit.

TERMINATION LETTERS WHEN DISCHARGED

I have now seen several cases where employees who are discharged are asked to sign a piece of paper. Some of these papers are entitled "Exit Interview", "Exit Receipt" or whatever. In some circumstances, after an employee is fired or downsized, many companies have the employee sign an acknowledgment of wrongful conduct or a letter of resignation - this will adversely affect your claim for unemployment benefits. In other circumstances, after an employee is fired or downsized, many companies have the employee sign a waiver giving up the right to sue for wrongful termination in exchange for a severance package. Whether these documents are enforceable is not always clear and will depend on the specific circumstances of each case. To be unenforceable, the employee will usually have to show that the document was signed under duress or as a result of some other wrongful action by the employer. If you have been terminated and asked to sign any document, you should speak to a lawyer before doing so. If you have already signed such a document, a lawyer can determine whether it is enforceable. A lawyer can also represent you in court.