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
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.
“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 year, then she must be permitted to roll them over. A ‘use-it-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. 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.
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 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 multi-factor 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 516-338-1890 or 212-264-8185 for help in determining your status.