When em­ploy­ment is at will, ben­e­fits can be changed

Austin American-Statesman Sunday - - JOBS -

DEAR CAR­RIE: I lost my job in April of last year. As a re­sult, I re­ceived six months of un­em­ploy­ment ben­e­fits. I fi­nally got a job in May of this year. The work is sea­sonal and will run un­til mid-Septem­ber. Will I be el­i­gi­ble to reap­ply for un­em­ploy­ment ben­e­fits after this job ends? — Back to Ben­e­fits? DEAR BACK: It de­pends on whether you meet the cri­te­ria in what is called your base pe­riod, or the first four of the last five com­pleted cal­en­dar quar­ters pre­ced­ing the fil­ing of your claim.

Here are some ba­sics on el­i­gi­bil­ity from the New York La­bor De­part­ment:

“You must have worked and been paid wages for work in at least two cal­en­dar quar­ters in your base pe­riod, and you must have been paid at least $2,100 in wages in one of the cal­en­dar quar­ters in your base pe­riod, and the to­tal wages paid to you in your base pe­riod must be one and one-half times your high quar­ter wages.”

DEAR CAR­RIE: I work for a large Long Is­land, N.Y., com­pany that is plan­ning to sell my de­part­ment to another com­pany. After the sale, my job, its location and the man­age­ment I re­port to will re­main the same. That’s good news. What’s bad is that I will have sub­stan­dard but costly health in­sur­ance with a high de­ductible, which I don’t pay now. Some em­ploy­ees will also lose their paid-time off. After the tran­si­tion, we will be re­quired to sign a con­tract bar­ring us from re­turn­ing to our for­mer em­ployer for one year. Is all of this le­gal? What if I refuse to sign? I am salaried, nonunion and have no em­ploy­ment agree­ment. — Same but Dif­fer­ent DEAR SAME: In gen­eral, your em­ployer can legally make those changes be­cause you are an em­ployee-at-will, which means you are aren’t cov­ered by a con­tract, as you men­tioned.

“That means that any of her terms of em­ploy­ment can be changed at any time, for any rea­son,” said em­ploy­ment at­tor­ney Richard Kass, a part­ner at Bond, Schoe­neck & King in Man­hat­tan in New York City.

But the em­ploy­ment at-will rule has one big ex­cep­tion.

“The em­ployer can­not dis­crim­i­nate on the ba­sis of race, sex, age, re­li­gion, sex­ual ori­en­ta­tion, dis­abil­ity, na­tional ori­gin, or any other cat­e­gory pro­tected by law,” Kass said. “But there doesn’t seem to be any rea­son to believe that un­law­ful dis­crim­i­na­tion is go­ing on here.”

Now, on to more specifics re­gard­ing your ques­tions.

Even though the Af­ford­able Care Act, or Oba­macare, en­cour­ages large em­ploy­ers to pro­vide most of their full­time em­ploy­ees with af­ford­able health in­sur­ance ben­e­fits, “there is no ab­so­lute re­quire­ment that a fixed level of health in­sur­ance ben­e­fits be pro­vided,” Kass said.

What’s more, he added, “em­ploy­ers that fail to com­ply are not act­ing un­law­fully,” he said. “They just have to pay a tax penalty.”

Com­pa­nies don’t have to of­fer paid time off (PTO) to em­ploy­ees and can change the rules, but in some cir­cum­stances they may need to honor time ac­cu­mu­lated un­der the old rules.

“If PTO was pre­sented to em­ploy­ees as a vested right, then it can­not be taken away without compensation,” he said. “But de­pend­ing on how the sale of the busi­ness was struc­tured, it might be the old em­ployer’s re­spon­si­bil­ity to pay for the ac­crued PTO time, not the new em­ployer’s.”

As for the non­com­pete agree­ment, in most states, in­clud­ing New York, “it is le­gal for an em­ployer to re­quire em­ploy­ees to sign a con­tract that re­stricts them from work­ing for a com­peti­tor, as long as the re­stric­tion is for a rea­son­able pe­riod of time and in a rea­son­able ge­o­graphic area,” Kass said. “And em­ploy­ees who refuse to sign can be fired.”

And he added, “Even if the old em­ployer is no longer a com­peti­tor of the new em­ployer, the con­tract would prob­a­bly still be en­force­able, if the new em­ployer has a rea­son­able fear that the old em­ployer might try to re­hire its em­ploy­ees.”

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