Answers Posted By Neil Klingshirn

Answer to Employee AND contractor??

You should run this question past an accountant.

I do not know enough to answer your question outright. I suggest that you check with an accountant. From what little I know I believe that you actually benefit from having the bonus reported on a 1099, since you get taxed around 7% for social security and medicaid on W-2 wages but not on 1099.

Regards,

Neil.

posted Feb 28, 2003 09:38 AM [EST]

Answer to Fabricated document

Perjury is the penalty for a fabricated document

Your employer can use a fabricated document to oppose unemployment, even if you did not sign it. The penalty for doing so is perjury. This will not help you win your unemployment compensation claim. Instead, you need to be ready to show that your attendance was satisfactory. If you are able to convince Jobs and Family Services that the document is fabricated, then you should be able to obtain your claim.

That said, threatening to fabricate documents is a seriously bad thing for an employer to do. Consider making a formal complaint against this boss, unless you believe that the risk of retaliation is so great that that will get you fired. If you make such a complaint, however, it not only may stop the boss from firing you and/or fabricating documents, but it will give you some credibility later when you claim that your boss threatened to make these dates up.

Regards,

Neil Klingshirn

posted Feb 26, 2003 4:31 PM [EST]

Answer to Cut wages, If I quit, do I still get severence?

You could get severance if you are constructively discharged

Does your company have a severance plan? If not, you are probably not entitled to severance, whether your salary is cut or you are terminated outright. Absent a severance plan, the company will pay severance only if it decides to do so.

If your company has a severance plan, you will be entitled to severance pursuant to the terms of that plan. Generally, severance plans award severance pay if you are termniated for a reason other than poor performance or other cause.

The issue you raise is, if there is a plan that provides for severance upon your termination, whether cutting your pay in half is the same as termination. Generally speaking, the answer is "probably yes." In legal terms, the issue is whether the company "constructively" (as opposed to actually) discharged you. A constructive discharge occurs where the employer makes working terms and conditions (like pay) so intolerable that the employee feels compelled to quit. If so, courts will treat the constructive discharge the same as an actual discharge. That is, if there is a severance plan that pays severance benefits in the event you are terminated and your employer constructively discharges you without terminating you outright, you are probably entitled to the severance.

Best regards,

Neil Klingshirn.

posted Feb 26, 2003 4:24 PM [EST]

Answer to Retaliation? Please help...

You may have a case sufficient for contingency representation

If you can prove that your complaint of harassment caused your termination, you may have a sufficient claim. That is, if you engaged in protected conduct (made a good faith complaint) and were fired (which you were), you have a claim if your complaint caused your employer to fire you. The trick, of course, is proving why the employer acted as it did.

To prove causation, you need evidence. The timing is some evidence of causation, but you probably need more. We can discuss what you need, such as hostile employer comments or retaliation against others, during a consultation if you like.

The employer's claims that it fired you because of sexual emails in your email box is a double edged sword. If you can prove that it did not and would not have terminated you for those reasons, then the fact that the employer gave a false reason is some evidence of retaliatory bias.

On the other hand, if the employer can convince the jury that it discovered something after your termination that justified your termination, the employer can avoid paying damages from the point of discovering the justification forward.

Whether or not your case is strong enough to merit consideration as a contingency case depends on the specific facts, including the amount of money damages you may suffer. If you would like us to evaluate your case, call Cheryl at 330.665.5445, ext. 0 and she can schedule a consultation.

Best regards,

Neil Klingshirn

The fact that the employer terminated the harasser is not entirely relevant to

posted Feb 25, 2003 12:36 PM [EST]

Answer to Loss of job due to inability to work with a hostile employee

Remedies for a hostile environment

First, make sure that you apply for unemployment compensation. From the sounds of it you should be eligible.

Compensation for the hostility of the environment will depend mainly on whether the hostility is dished out in a discriminatory manner. That is, if your supervisor was hostile to you because of your gender, age, race or other protected status, it would be unlawful. If your supervisor is generally hostile to anyone and everyone, however, then it is not, believe it or not, unlawful, unless her hostility is so extreme as to become "outrageous."

posted Feb 22, 2003 1:34 PM [EST]

Answer to Hostile work environment based on race

Reverse discrimination is proven the same as any other discrimination case.

To prove race discrimination, your sister must prove:

1. Different treatment;

2. That adversely affects her.

3. Because of her race;

and damages as a result.

It sounds like the black staff have a problem with your sister's race, white. If your sister can prove that management shared that bias and terminated her because of it, she can recover the full range of discrimation damages (lost wages and benefits, reinstatement and compensatory damages).

The fact that your sister is white and the staff are black does not make a difference if the management decision-makers a black too. Until recently, a white victim of discrimination had a harder burden to prove when claiming discrimination by blacks, since whites have not historically been victims of discrimination. The federal appeals court in Ohio, however, recently ruled that a victim of so called "reverse discrimination" by member of another race need only prove the same thing as the victim of discrimination by whites, which is that their race played a motivating role in whatever harmful things were done to them.

As for the harassment, courts look it as a form of discfrimination. If the staff harasses your sister because of her race, or the harassment is based on her race, then the law forbids that harassment. To know more about discrimination and harassment as a form of discrimination, please see the FAQs on harassment on this site on those topics.

Best regards,

Neil
Therefore, reverse race





posted Feb 5, 2003 2:12 PM [EST]

Answer to age, discrimination

Do you have other, direct evidence of age discrimination?

Hi Roger:

An employer is allowed to make an illogical and even outright dumb employment decision without committing age discrimination. To prove age discrimination, you need to show that you were treated differently than others within your age group (i.e., the outside sales force members under the age of 40) and that the different treatment was because of your age. To show that the different treatment was because of your age, courts look for age related remarks and similar evidence.

Be aware that, in a reduction in force situation, the employee has an even tougher time proving that his or her age played a role. Finally, if the company can, in fact, show that it terminated those under 40 at the same rate as those over 40, you may lose the benefit of statistics. It becomes very difficult doing a statistical anaylsis where you have to control for performance (i.e., those under 40 deserved to be fired while those over 40 did not). Finally, to the extent that the company can point to legitimate reasons for the reductions (moving its sales force in-house or moving to a different product line), it can justify the terminations on that basis.

That said, if the employer gives a "pretextual," or phony reason for your termination as a cover up for the real reason, courts will accept the pretextual reason as evidence of discrimination.

If you would like to discuss your particular claim in greater depth or analyze the adequacy of the severance offer, we offer an initial consultation for a fee of $200.00. Call Cheryl at 330.665.5445, ext. 0 if you are interested and she will get you on my calendar.

Regards,

Neil Klingshirn

posted Jan 27, 2003 10:39 AM [EST]

Answer to Employer denies involuntary leave in layoff with severance choice

They can oppose unemployment, but may not be able to defeat it.

If you are referring to the Supplemental Unemployment Compensation Benefit offered by a large Akron employer in connectin with the layoff of about 350 salaried employees, this employer is taking the position that you will "voluntarily quit" if you elect a lump sum benefit but will be "involuntarily terminated" if you elect periodic payments subject to offset. The difference is that you are eligible for unemployment compensation benefits if involuntarily terminated, but not if you voluntarily quit.

The flaw with this approach is that, in reality, you were involuntarily terminated. That is, could you go to work today, or would you be turned away at the door? If you cannot go to work despite your desire to do so, you have been involuntarily terminated.

Unemployment compensation looks at the reality of the termination, not how the employer "deems" it. However, this employer is stating that it will oppose your claim based on the voluntariness of your election. We expect to fight that fight on behalf of a growing number of employees who, like you, want to elect the lump sum.

For now, a conservative approach is to decide whether to elect the lump sum based on the assumption that you will not receive unemployment compensation benefits. If you so elect, be sure to apply for unemployment and pursue all the appeals, as this employer will oppose your claim.

The legal issue is straightforward and will be common to anyone who elects the lump sum. You might consider contacting any other employee in the same shoes as you to see if you can share the burden of pursuing your benefits. Feel free to contact me at 330.665.5445 if you would like to consider having us represent you in this matter.

Regards,

Neil.


posted Jan 27, 2003 09:30 AM [EST]

Answer to Can you be forced to use vacation time for being sent home early from work?

An employer can dictate when you take vacation

The short answer to your question is "yes." An employer has no obligation to offer any vacation at all. Therefore, it follows that an employer can dictate when you take your paid time off.

Regards,

Neil.

posted Jan 17, 2003 10:54 AM [EST]

Answer to FMLA retaliation/perceived disability/hostile work environment/intentional infliction of emot stress

Consider filing a complaint of harassment

The FMLA prohibits an employer from "in any manner" discriminating against an employee who takes FMLA leave. This would include discriminatory harassment. The problem, however, is that the remedy available to the victim of harassment is recovery of lost wages and actual costs. Therefore, if an employer harasses an employee for taking leave but does not terminate the employee or otherwise cause the employee a financial loss, the employee cannot recover anything.

If the harassment is so severe that a reasonable person in your shoes would feel compelled to resign, you could claim that the employer "constructively" terminated your employment and seek your lost wages. However, it is very difficult to prove a constructive disharge. I do not recommend this without a clear understanding of the risks and what you need to prove a constructive discharge.

Another option is to file a complaint of harassment. This might make the harassment stop. If it does not, it could provide a better remedy of retaliation for asserting a protected right. I strongly recommend formulating the complaint with the help of an attorney, however, to obtain the most protection and to make sure that you do not unnecessarily aggravate the employer.

Best regards,

Neil.

posted Jan 13, 2003 10:24 AM [EST]