New York Employment Lawyer Blog

Generally, yes. If your employer is using federally earmarked funds for personal or other unauthorized uses you could be a whistleblower and entitled to a share of the funds you save the government and taxpayers. For example, if the company may be misusing federal funds that are earmarked for training programs but they are used for salaries and office expenses. In order to be a whistleblower, your claim must meet several criteria. First and perhaps most important, your claim must be based upon an original source. For example, your claim cannot be based on information in the news, publicly available or a previously filed complaint. Yes, in this case, a race to the courthouse is important. First to file is critical. Second, your claim must be substantial. Generally, Qui Tam claims are in excess of one million dollars. Third, you need to be prepared. You should work with an experienced Whistleblower Lawyer to properly gather evidence and build your case. This is critical as an early misstep can prove costly. Our New York Qui Tam and False Claims Lawyers are experienced in building whistleblower cases and can help you in your case.

Continue reading "False Claims & Qui Tam Whistleblower Q&A: Can I blow the whistle if my employer is misusing federally earmarked funds?" »

This is a very common question received by our New York Severance Package Attorneys. It is important to seek the advice of your accountant regarding taxation issues but here are some general tips. Generally, yes, severance pay is considered taxable as wages. In addition, payments you receive for accrued but unused vacation days and sick days are taxable. However, generally, your former employer's payments to your health insurance provider for continued coverage under COBRA may not be attributed as income to you and may be tax-free to you. There could be potential tax consequences of payments for stock options, pension credits and outplacement services as well. Our New York Severance Package Lawyers have negotiated many severance pay agreements and can help you understand and maximize the terms of your severance package. Again you should seek the advice of your tax professional regarding your specific tax issues as we are not tax attorneys and cannot provide any specific advice.

Our Misclassification of Employees Attorneys have been following a recent case wherein United Health Care agreed to pay over one million dollars in back wages and penalties for misclassifying employees as exempt instead of non-exempt and overtime eligible under the Fair Labor Standards Act (FLSA). Almost 500 employees will receive $934,000 in back wages and United Health Care will pay an additional $104,280 in civil monetary penalties. United Health Care did something many employers mistakenly do - it incorrectly classified employees so they were ineligible to receive overtime. Proper classification of employees under the FLSA is critical because improper classifications can raise class action implications. Importantly, generally an employer's intent is not a factor in a misclassification lawsuit when considering exempt versus non-exempt status. Accordingly, an employer may have very good intentions but its error in classifying employees regarding exempt status under the arcane language of FLSA can raise potential six figure liability. It is of paramount importance for employers to seek the guidance of a qualified Employment Attorney before classifying employees.

Below are two common mistakes made by employers under the FLSA:

1. Calling an employee a "manager" and automatically determining the employee is an "executive" and thus ineligible for overtime payment for hours worked in excess of forty in a work week. In order for the executive exemption to apply, the employee must be paid on a salary basis at a rate of at least $455 per week and meet each of the following tests: i) the employee's primary duty is managing the business or a customarily recognized department or subdivision; ii) customarily and regularly direct the work of two or more other full-time employees or the equivalent; and iii) have the power to hire or fire, or make decisions regarding hiring, firing, promotions or other employment decisions. This is not a simple standard to meet. Most often, "managers" will not meet this heavy burden.

2. Refusing to pay an employee for overtime for hours worked that were not approved in advance. If an employee works in excess of forty hours in a work week and qualifies for overtime payment, employers are required to pay time and one-half the regular rate for the weekly hours that exceed forty. Many employers may complain about paying unapproved overtime. In such cases, it may be prudent for the employer to pay the employee and then consider reviewing its employment practices to make sure it is a violation to work overtime without prior approval. If the employee violates the company policy, the employee may then be subject to discipline. Employers have to careful when disciplining an employee in these circumstances to avoid a potential retaliation claim under the FLSA.

If you have any questions about your rights or obligations under the FLSA or a misclassification issue, contact our New York Misclassification of Employees Lawyers at (800) 893-9645.

Continue reading "Misclassification of Employees Results in Million Dollar Payments by United Health Care, the Nation's Largest Health Insurance Carrier Employer" »

Q: After considering several physician jobs, I just received a physician employment contract from a medical practice that I really like. However, the physician employment contract has a non-competition clause that would restrict me for 3 years after my termination of employment within a 10 mile radius of the medical office, which includes 2 hospitals. Should I sign this Doctor Employment Agreement?

A: Non-compete clauses (also known as restrictive covenants) are probably the most important facet of your physician employment contract. They should be negotiated carefully so as to decrease it scope and parameters as much as possible. The non-competition clause of your physician employment contract could mean the difference between having to move and relocate your family in the event the job does not work out. Our Physician Employment Agreement attorneys have helped physicians, medical doctors, physician assistants, nurses and other medical professionals safeguard their careers and their families by evaluating and negotiating the terms of a proper employment contract.

Continue reading "Non-Competition Agreements in Physician Employment Contracts Q&A" »

Recently, Oracle settled a qui tam whistleblower lawsuit for $46 million with the U.S. government regarding allegations under the False Claims Act and the Anti-Kickback Act. The complaint alleged that Sun Microsystems Inc. ("Sun"), which was bought by Oracle in 2009 for about $7.4 billion, knowingly paid kickbacks to consulting companies in exchange for their recommendations to federal agencies to purchase Sun's products.
The qui tam whistleblower lawsuit was originally filed in 2004 by 2 whistleblowers in Arkansas and was subsequently joined by the government in 2007.

The 2 whistleblowers, Norman Rille, a former manager at Accenture, and Neal Roberts, a former partner at PricewaterhouseCoopers ("PwC"), alleged in their qui tam whistleblower lawsuit that dozens of IT vendors and systems integrators had a widespread kickback scheme in trying to obtain government contracts. They also alleged that Sun paid consulting companies every time they influenced a government agency to purchase Sun products. As qui tam whistleblowers, Rille and Roberts will share in 15%- 25% of the government's recovery. If you observe fraud being committed against the government at your place of employment, contact our Whistleblower, False Claims and Qui Tam Lawyers for an immediate confidential consultation at (800) 893-9645. As you can see the case against Sun, and later Oracle, took years to build. It is critical that whistleblowers speak with experienced attorneys before taking any steps that could prove fatal to the case.

The federal government has stated that these kickbacks are "part of a larger, ongoing investigation of government technology vendors that has resulted in settlements to date with six other companies." In fact, several other companies have settled regarding similar allegations under the False Claims Act. IBM agreed to a $3 million settlement, PwC agreed to pay $2.3 million and Computer Sciences agreed to a settlement of $1.4 million.

When companies use undue influence and conspire to obtain lucrative government contracts, the government loses its ability to make an informed decision. It is a crime against all taxpayers when the government is mislead and does not award contracts to the companies with the best prices and products. As evidenced by the flurry of recent lawsuits brought under the False Claims Act, the government is clearly cracking down on fraud and kickbacks with the help of concerned, private individuals. If you observe fraud being committed against the government, at your workplace, help save your tax dollars and call our experienced Whistleblower Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you decide if you have a case under the False Claims Act.

Continue reading "New York Qui Tam Whistleblower Attorneys Update: Software Giant Oracle Agrees to $46 Million Settlement for Allegations Under False Claims Act and Anti-Kickback Act" »

Recently, our New York Worker's Compensation Defense Attorneys have been seeing more employers being audited by the New York State Department of Labor, Unemployment Insurance Division for non-payment of employment taxes. Employers are required to pay 6.1 percent of each employee's first $8,500 in wages for unemployment insurance benefits taxes. The typical scenario occurs when a company has classified individuals as independent contractors instead of employees. It is possible that this classification was proper and legal but many employers are unprepared to defend and fight the audit. In some cases, employers decide to simply pay the alleged back taxes owed for unemployment insurance benefits so that they spend time running their business. This decision can have disastrous results as the New York State Department of Labor, Unemployment Insurance Division, shares its information with the New York State Worker's Compensation Board. Shortly after these companies decide to pay the unpaid unemployment insurance benefit taxes, which are generally not significant, they are surprised to learn that they hit with a tremendous bill (many times over $100,000.00) from the New York State Worker's Compensation Board. Critically, these employers defenses may be compromised from their earlier admission by paying the New York State Department of Labor taxes. Companies and employers must strategically consider all of its responses to government agencies especially agencies that could issue penalties in excess of $100,000.00.

Our New York Worker's Compensation Board Defense Attorneys have been fighting for businesses for years and removing and reducing penalties and judgments. Call now to speak with one of our New York Worker's Compensation Board Attorneys and learn how we can help protect your business (800) 893-9645.

This is a common question that our New York and New Jersey Severance Pay Lawyers regularly receive from our clients. In New York, except in very limited circumstances, employers are required to pay employees for unused accrued vacation pay upon termination of employment. Many employees mistakenly believe that they accrue full vacation time (e.g., two weeks) upon their date of hire. Generally that is not true. Most companies have a schedule wherein vacation time accrues on a monthly basis. For example, if an employee only worked six full months, that employee may have only accrued half of his or her vacation allotment. In most cases, employees should receive payment for their accrued vacation pay even if they do not sign a Severance Package. Although it is not common in New York, employers may require employees to forfeit their vacation pay unless certain criteria such as signing a Severance Package. In order for employers avail themselves of this benefit, they must notify their employees in writing of the conditions regarding forfeiture of vacation pay.

In New Jersey, generally employers are not required to pay accrued and unused vacation pay to separating employees. However, our Severance Pay Lawyers have successfully argued that our clients should receive vacation pay based on several legal arguments. An experienced employment attorney can negotiate more favorable terms of your severance pay agreement. In recent years, there has been increased litigation, including class actions, regarding the accrual, capping, forfeiture and payment of vacation pay.

Call now to speak with one of our experienced Severance Package Lawyers to discuss the terms of your severance agreement - (800) 893-9645.

Continue reading "Severance Package Lawyer Update: Should My Severance Pay Include Payment for Accrued Vacation Days? " »

This time of the year, our New York, New Jersey and Connecticut Physician Employment Agreement Attorneys are busy preparing, reviewing and negotiating employment agreements for physicians seeking jobs and medical practices seeking to hire physicians. Doctors who are finishing up their residencies and fellowships are in the process of evaluating job offers and trying to negotiate the best employment contract or partnership agreement, which in some cases, could end up affecting the rest of their career as well impact their personal life significantly. With that in mind, it is extremely important to negotiate and execute a contract that which will take into account the terms of your employment not just now, but in the following five to ten years. If you're in the process of evaluating an employment contract or a partnership agreement, call our experienced Physician Employment Agreement Attorneys at (800) 893-9645 to help you negotiate the best possible contract terms.

You must negotiate the terms of your contract. Do not commit to a verbal offer. Ask for an employment contract and time for your attorney to review the contract. Many times an employee will not feel comfortable asking for better compensation, work schedule, or negotiating a clause. Our Physician Employment Agreement attorneys have negotiated numerous agreements to gain increased compensation and perks.

TIP #1: Analyzing your non-compete clause can mean the difference between your having to re-locate in case the job does not work out. A non-compete clause may bar you from joining another practice or even opening up your own practice in the restricted area for a certain period of time. Contrary to popular belief, non-competition and non-solicitation (of patients) clauses are enforced by the Courts if they are drafted reasonably. Many physicians mistakenly believe that agreements not to compete are not enforceable. Generally, that is not true. The law does not want to prevent you from working but could restrict you in a certain manner for a limited time period. Call our attorneys to help negotiate the parameters of your non-compete clause and make sure that it is does not adversely affect your livelihood and income potential.

TIP #2: It is imperative that you learn if and how the medical practice will cover your medical malpractice insurance, what level of coverage they will provide and whether it is an occurrence or claims based coverage. The terms of a malpractice insurance policy or coverage may not seem like a significant issue at the outset of your employment relationship but they could make all the difference if coverage is ever needed. Our experienced Physician Employment Lawyers can help negotiate the best type of coverage based on your specialty and specific needs.

TIP #3: If your employment contract is a stepping stone to a partnership track, make sure you ask how long you must remain an employee, what are the terms of the buy-in and buy-out for retiring physicians, and you should obtain copies of tax returns and financial statements. These are just a few things to keep in mind for physicians considering employment opportunities. Our experienced Physician Employment Attorneys at Villanueva & Sanchala can discuss all the intricacies involved in a partnership agreement so that you avoid future conflict or regret. Call us now for a confidential consultation at (800) 893-9645.

Continue reading "New York, New Jersey & Connecticut Physician Employment Agreement Update: Non-Compete Clauses & More" »

Q: I've worked for the same investment bank for 4 years and I am nervous that I may get laid off. Is my Wall Street firm required to give me a severance package?
A: Except in very limited circumstances, the law does not require your employer to give you a severance package. In today's economic climate, the growing tendency is to offer employees a package before they are terminated. We have seen circumstances where severance packages are not devices to "soften the blow" but a strategic, preemptive move by human resources to have you waive your right to sue for wrongful termination, discrimination, or sexual harassment. It is for this reason that we recommend that
you call our experienced New York Severance Pay Attorneys for a confidential consultation today at (800) 893-9645. Do not sign a severance agreement without having an experienced attorney review it with you and, if appropriate, negotiate its terms.

Q: What Does A Typical Severance Package Look Like?
Each severance package will vary from company to company. Some
severance packages are one page in length while other can be over 15 pages. It all depends upon the savvy and acumen of your human resources department and in-house counsel. There are some things that will be universal in any standard severance package. You should be very careful about what you give up in exchange for receiving severance pay - most, if not all, will include a release of your claims but many will also include confidentiality, non-disparagement, cooperation, non-competition, non-solicitation and other post-employment obligations. Many of these obligations and the amount of severance pay can be negotiated by experienced Severance Agreement attorneys.

Q: If I receive a Severance Package, How Much Severance Pay Should I Receive?
A: Most severance packages will include some kind of compensation based
upon a formula derived by the company. For example, you may receive
one week of salary for every year that you worked for the company. However, each situation is different and, depending on if you have a claim or your individual circumstances, our Severance Package Lawyers may be to negotiate greater severance pay or more favorable terms.

Q: Can I Still Continue My Health Insurance Benefits?
A: Congress has enacted Federal laws and most states (including New York, New Jersey and Connecticut) have enacted laws that require an employer to offer you continued health insurance benefits at your expense. Most people refer to these laws as COBRA and Mini-COBRA statutes. Expenses for COBRA can be very expensive and a seasoned attorney may be able to negotiate its coverage as part of your severance package.

Q: Can I Receive Severance Pay and Still Collect Unemployment Insurance Benefits?
A: It depends on the terms of your severance pay. We recommend that you call our employment severance package lawyers to discuss this in further detail. Call today to schedule your consultation at (800) 893-9645.

Q: Can Your Law Firm Help Me Make Sense Of this Document Filled With Legalese?
A: Yes. Your former employer has a team of lawyers fighting to ensure its interests are protected. You should too. Call our Severance Package attorneys at (800) 893-9645 to schedule your confidential consultation today and protect yourself.

Last month, President Obama signed the FDA Food Safety Modernization Act, Section 1012, (FMSA), and in doing so, he granted historic whistleblower rights to employees in the food safety industry. The FMSA is broad in its scope and protects employees who work for companies "engaged in the manufacture, processing, packing, transportation, distribution, reception, holding or importation of food." The FMSA prohibits an employer from retaliating against an employee who engages in protected activity by complaining about food safety violations of the Act. Some examples of protected activity include reporting food that was tainted, toxic or otherwise contaminated, reporting improper and dangerous additives were added to food, reporting that food was stored in a dangerous environment. Our New York Employee Rights Whistleblower Attorneys have represented many employees who have been retaliated against for exercising their rights because they engaged in protected activity. If you have been retaliated against, call (800) 893-9645 now to speak with one of our Employment Law Lawyers for a confidential consultation regarding your employee rights.

Critically, the FMSA has very limited deadlines to file a complaint with the United States Department of Labor. In general, claims must be filed within 180 days of the discriminatory action. Some types of claims may need to be filed earlier. It is very important for an employee to speak with an experienced whistleblower attorney immediately so that the employee's claim is not jeopardized. An experienced attorney can help an employee navigate the complex administrative process with the Department of Labor and, if necessary, the process in Federal Court. If an employee is successful in proving a claim, the employee may be entitled to reinstatement, back pay and compensatory damages.

If you have been retaliated against or have questions about your employee rights and how to best deal with issues in your workplace, call now to speak with one of our New York Employee Rights Whistleblower Attorneys for a confidential consultation - (800) 893-9645.

Our Contractor/Employee Misclassification Employment Lawyers have been closely following the New York State Department of Labor's efforts to crackdown on misclassification of employees as independent contractors. Recently, New York enacted legislation entitled, "New York State Construction Industry Fair Play Act." which states that a construction worker is presumed to be an employee and not an independent contractor unless very specific criteria are met. This law is not expected to be good news for companies who are not compliant with worker classifications; however, it should enable more workers collect employee benefits such as paid vacation, health insurance, contribution towards payroll taxes and reduce the burden on companies that are compliant. Misclassification can have serious consequences, often with complex intermingled issues, for companies that could be subject to multiple and simultaneous investigations from several departments within the New York State Department of Labor, the New York State Workers Compensation Board, the IRS and a class-action lawsuit by misclassified workers. Federal Express Ground and World Wrestling Entertainment (WWE) are two well known companies who have faced misclassification issues recently. Our New York Employee Misclassification Lawyers and Attorneys have represented many businesses and individuals regarding employee misclassification issues. Contact one of our New York Employment Lawyers at (800) 893-9645 to confidentially discuss your question or issue.

Under the Act, a construction worker will be considered an employee unless the worker is a separate business entity or the following three criteria are met: (1) the worker is free from control and direction in performing his or her duties; (2) the services performed are outside the usual course of the company's business; and (3) the worker is customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue. Only if all three criteria are present, the worker could be treated as an independent contractor. This is a high standard for most companies to meet.

Proper classification of workers as 1099 Independent Contractors can be a significant advantage to companies. Companies can take advantage of many benefits if they correctly classify workers as independent contractors. For example, companies do not have to pay employer portion of payroll taxes (i.e., FICA and FUTA), and offer employee benefits, which can be substantial, to independent contractors. However, although the use of consultants and independent contractors is on the rise, our experience has shown that many companies intentionally or negligently improperly misclassify workers. Many companies incorrectly have workers sign an independent contractor agreement, which is often poorly drafted and downloaded online from a free site, and then believe that they can treat the workers as independent contractors. This is a dangerous practice and not legally tenable. Proper classification requires careful legal analysis. It is best for a company to consider its worker classification practices before it is audited by the Department of Labor or IRS. Our Employment Law Attorneys have helped companies properly classify workers and helped employees collect benefits when they have been improperly misclassified.

In addition to the potential of a class action lawsuit, the penalties against a non-compliant company are significant. Companies, including some shareholders, who willfully violate the New York State Construction Industry Fair Play Act may be subject to civil and criminal penalties. The Act expressly prohibits companies from retaliating against workers who complain about their misclassification status. Furthermore, employers are required to a posting a Notice in workplace specific to the Act. Contact our New York Employee Misclassification Attorneys to confidentially discuss your misclassification issues at (800) 893-9645.

Bronxville, New York resident, Joseph P. Villanueva, Lead Trial Counsel of Villanueva and Sanchala, PLLC, headquartered in Scarsdale with offices throughout New York State, has been named one of thirty "Dynamic Male Executive" of 2010 by the Westchester County Business Journal.

Mr. Villanueva is featured in the Journal's November 29 issue showcasing a very select group of businessmen to watch in the future.

"We are proud to have Joe recognized by the business community for his dedication to the profession and the results delivered to our clients. In many respects he is our ambassador in the courts and community," said Tejash V. Sanchala, his law partner.

Mr. Villanueva was chosen not only for his legal acumen but his involvement in the community. He has served on the Board of Directors for the Westchester County Bar Association and led numerous charitable events.

"Whether they live or work in Westchester, our male executives are bringing to the county new energy and hope for the future... [these men] have crossed oceans, braved boardrooms, and crushed the competition to be where they are today . . . these men are on the fast-track to lead us toward better times," said Kelly Liyakasa from the Journal.

"Our practice has always made it a point to balance our legal obligations with our commitment to servicing the community. I'm proud that we have achieved both and are recognized for our efforts," said Mr. Villanueva.

Mr. Villanueva is the primary trial attorney for the firm and has a track record for taking verdicts on a wide array of cases from civil to criminal matters. In recent years, his focus has been on employment law matters such as wrongful termination, sexual harassment, whistleblower cases, and unpaid wage and overtime matters.

Defense contracting giant Lockheed Martin ("Lockheed") recently agreed to a $2 million settlement in a qui tam whistleblower lawsuit under the False Claims Act ("FCA") filed by David Magee, a former employee of the Naval Oceanographic Major Shared Resource Center. Magee will receive $560,000.00 of the settlement for his part in discovering the fraud and bringing the whistleblowing lawsuit on behalf of the government. The lawsuit alleged that government employees conspired with Lockheed and other subcontractors to make sure that they won the government contract. Our New York, New Jersey and Connecticut Whistleblower Attorneys have helped many clients with whistleblower and retaliation cases. Call (800) 893-9645 if you have witnessed fraud or conspiracy against the government at your workplace.

Magee, a computer scientist at the Stennis Space Center, alleged in his complaint that two government employees working at the Shared Resource Center conspired with Lockheed, Science Applications International Corp, ("SAIC") and Applied Enterprise Solutions ("AES") to ensure that SAIC and its subcontractors won the $115 million government contract. Magee filed a qui tam whistleblower lawsuit under the False Claims Act against Lockheed and the other subcontractors in June 2009.

Lockheed is ranked as number 1 on Washington Technology's 2010 top 100 list of the government's largest contractors. For its part in helping SAIC obtain the $115 million government contract, Lockheed received $2 million. While the suit against Lockheed is settled, the government's suit against the government employees and the other subcontractors still continues.

Without whistleblowers, many acts of fraud and deceit against the government and hence all taxpayers would go unnoticed. A qui tam suit allows a private individual with knowledge of a present or past fraud being committed against the U.S. government to bring a suit on the government's behalf. Tony West, the Assistant Attorney General for the Justice Department, has stated that "Whistleblowers have helped us to enforce the law by bringing to light schemes that misuse taxpayer dollars and abuse the public trust by undermining the integrity of the procurement process." As an economic incentive, the whistleblower can recover up to 15% - 25% of the recovery if the government intervenes and takes over the lawsuit and up to 25% - 30% if the government does not intervene. Mostly importantly, in order to share in the recovery, you must be the first person to bring the case to the government's attention.

Continue reading "Update from New York Qui Tam Whistleblower Lawyers and Attorneys: Government Defense Contracting Giant Lockheed Martin Settles False Claims Act Lawsuit" »