Can ex-hus­band (and cur­rent boss) nix va­ca­tion days, track cell­phone?

Austin American-Statesman Sunday - - JOBS - By Car­rie Ma­son-Draf­fen

DEAR CAR­RIE: Some years ago, my ex-hus­band and I started a busi­ness to­gether. He was pres­i­dent, and I was vice pres­i­dent. Then we sep­a­rated. I moved to Florida but con­tin­ued to work in the busi­ness. We later di­vorced. The fi­nal di­vorce de­cree in­cludes a buy­out, so I am now an em­ployee, with no own­er­ship in the com­pany. And the de­cree also pro­vides me with an em­ploy­ment con­tract that gives me such things as 20 va­ca­tion days a year, a set amount of pay and ben­e­fits.

I need some ad­vice re­gard­ing prob­lems I am en­coun­ter­ing as an em­ployee. My ex is re­fus­ing to roll over any un­used va­ca­tion days to the fol­low­ing year even though he has done so in the past for other em­ploy­ees. Is it le­gal for him to al­low it for other em­ploy­ees but refuse my re­quests? On Dec. 22 he told me that any va­ca­tion days I had ac­crued for the year could not be car­ried over to this year.

And can my ex legally put a track­ing de­vice on my com­pany-is­sued cell­phone to make sure I am sit­ting in my of­fice do­ing my work? I’m ready to leave as soon as I find some­thing de­cent in Florida. In the mean­time, any ad­vice you can lend will be greatly ap­pre­ci­ated! — The Ex Files And your ex has to be care­ful not to go too far.

“If the de­vice tracks the em­ployee dur­ing his/ her free time, that might create prob­lems un­der state laws,” he said. year, then she must be per­mit­ted to roll them over. A ‘useit-or-lose-it’ pol­icy can be en­forced only if the em­ployee has had a fair op­por­tu­nity to use the days over the course of the year.”

Your ex also has a lot of lee­way with your com­pany cell­phone.

“A pri­vate-sec­tor em­ployer that owns a cel­lu­lar phone is per­mit­ted to place a track­ing de­vice on it that op­er­ates when the em­ployee is sup­posed to be at work — a ball and chain, how­ever, is not per­mit­ted.”

The em­ployee should be told the track­ing de­vice is there, Kass said.

“Em­ploy­ers in New York — and in most other states — are free to make what­ever rules they want with re­gard to va­ca­tion days,” Kass said.

But here’s a key ex­cep­tion:

“The rules can­not be changed to the em­ploy­ees’ detri­ment af­ter the va­ca­tion days have al­ready been earned,” he said. “The rules can be changed only prospec­tively, for va­ca­tion days that have not yet been earned.”

The up­shot is, he said, “if the ex-wife’s va­ca­tion days were earned un­der the as­sump­tion that un­used days could be rolled over to the fol­low­ing

DEAR EX FILES: Un­for­tu­nately, your cir­cum­stances aren’t unique.

“The di­vorce of co-work­ers of­ten causes prob­lems,” said em­ploy­ment lawyer Richard Kass, a part­ner at Bond, Schoe­neck & King in Man­hat­tan. “Some­times the ex-spouse claims that any post-di­vorce ill treat­ment is a form of sex dis­crim­i­na­tion or mar­i­tal sta­tus dis­crim­i­na­tion, but most courts say that man­agers are per­mit­ted to make life mis­er­able for their exes.”

So your hus­band, as your em­ployer, has a lot of lee­way, with some ex­cep­tions, of course. a com­mon prob­lem in work­places, as some un­scrupu­lous em­ploy­ers try to save money on such things as work­ers’ com­pen­sa­tion in­sur­ance and pay­roll taxes.

The IRS uses a mul­ti­fac­tor test to de­ter­mine what a worker’s sta­tus is. In gen­eral, its web­site says that “an in­di­vid­ual is an in­de­pen­dent con­trac­tor if the payer (em­ployer) has the right to con­trol or di­rect only the re­sult of the work, not what will be done and how it will be done.”

Call the U.S. La­bor De­part­ment at 516-3381890 or 212-264-8185 for help in de­ter­min­ing your sta­tus.

DEAR CAR­RIE: I have worked for my em­ployer for five years as an in­de­pen­dent con­trac­tor. But I feel I’m be­ing treated as an em­ployee with­out any of the ben­e­fits. Can you tell me what con­sti­tutes the dif­fer­ence? — What’s My Sta­tus?

DEAR WHAT’S: The mis­clas­si­fi­ca­tion of em­ploy­ees is un­for­tu­nately


Work­ing for your ex can raise se­ri­ous ques­tions.

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