Answers Posted By David M. Lira

Answer to Severance Policy changed same day my position eliminated

Severance was Pulled

To start, employees generaly have no right to severance. However . . .

If a company has a regular practice of providing severance for eliminated positions, that practice might fall under the Employee Retirement Incomes Security Act. ERISA also covers benefits such as pensions and hospitalization.

Generally speaking, even under ERISA, you can lose benefits you have not yet earned. Thus, an employer can change the terms of health benefits, even eliminate them. It can change how employees earn pension from today onward, but cannot take away pension benefits from employees who have already retired.

Thus, an employer with a long practice of providing severance can decide to terminate that benefit, but timing can be everything. If the employer decided to end severence benefits and terminate a set of employees at the same time, the motivation of the employer becomes key. If the two decisions were made to simply frustrate the rights of certain employees, that might be a violation of ERISA.

However, the determination is highly fact specific. It would be a difficult case.

Consult an attorney to discuss the specifics of your case. I would be glad to help.

posted Mar 28, 2005 5:16 PM [EST]

Answer to 2 weeks notice

Two Weeks Notice

There is no law requiring either employers or employees to provide two weeks notice before separating. An employer can show you out the door at any moment. An employee can walk out the door at any moment. Without a word. Without a reason. All of this is because of the employment at will doctrine, which works in two ways, that is, both for the employer and the employee, depending on the circumstances.

posted Mar 28, 2005 09:49 AM [EST]

Answer to Severance to a part time employee who was once full time

A Right to Severance

Generally speaking, you don't have a right to any severance. (However, you would be entitled to payment of accrued leave, that is accrued vacation pay.)

When there are massive lay-off, such as after a merger, the employer might, but does not have to, offer severance to the terminated employees. (Sometimes, the offer of severance is part of the merger deal.) If the employer offers severance, then that decision might create certain rights in your favor, under a federal law called ERISA.

When the employer offers severance on a mass basis, it will do this according to a written plan. This written plan is what will determine your rights to severance.

Get a copy of that plan.

posted Mar 17, 2005 08:55 AM [EST]

Answer to Unpaid Salary

Getting Paid Unpaid Salary

If you are owed no more than $625, you can go to the New York State Department of Labor.

If you are owed no more than $5,000, you can go to small claims court.

If you are owed more than $5,000, you need to sue in another New York State Court such as Supreme Court, Civil Court, City Court or District Court.

You might be entitled to attorneys' fees, if you hire an attorney, and 25% above the amount of pay due (that is, liquidated damages).

If you were consulting with me, I would screen you for unpaid overtime as well.

posted Mar 11, 2005 06:40 AM [EST]

Answer to Age Discrimination -- jobs outsourced to India

Another Theory of Discrimination: Disparate Impact

This is an interesting question, and I'll provide a very general answer for public consumption. However, I encourage the people who posted this query to contact me or another experienced employment attorney to start a more thorough review of your situation.

There are two basic ways of proving a discrimination case. The ways are referred to as "disparate treatment" and "disparate impact."

Very generally speaking, cases involving individuals or small groups would rely on a disparate treatment theory. Although the courts have set up a confusing standard for proving a disparate treatment case which is referred to as the McDonnell-Douglas standard (the name refers to a U.S. Supreme Court case), which is increasing being turned upside down to make it more difficult for employees to prove discrimination, in disparate impact cases, employees generally need to show that the employer intended the discrimination. That is, the proof has to point to a conclusion that the employer took the action (termination, demotion, harassment, etc.) because the employee is part of a protected classification (that the employee belongs to a particular race, nationality, religion, etc.).

Disparate impact theory generally won't even work unless there are large enough numbers of employees. Disparate impact cases are usually class action cases. Disparate impact cases rely on statistics, and experts on statistics. The expert for the employees basically needs to be able to say that the numbers are such that no other explanation but discrimination makes sense.

posted Mar 8, 2005 2:23 PM [EST]

Answer to No Braids policy in workplace

Grooming Standards

Courts tend to not want to get involved with cases involving grooming standards. Even when the facts point strongly to possible discrimination based on protected classifications, courts can be very contradictory. For example, an employer would be inviting trouble if it had a grooming standard that prohibited black men from wearing beards. Shieks can't be fired for wearing turbans. Women can't be forced by grooming standards to wear revealing clothing. But it is perfectly legal to require a man to get a haircut. Christians might be prohibited from wearing at least large crosses.

posted Mar 8, 2005 1:40 PM [EST]

Answer to work related

The Boss Wants More

Unless you have a union, you would be an employee at will. If you are an employee at will, an employer may legally act in an arbitrary way.

So, you may believe you are doing a good job, and by objective measures you may be doing well. But, if the employer wants more from you, the employer is entitled to demand more from you.

It may be unfair for the employer to blame you for whatever problems come up. But if you are an employee at will, an employer may legally blame you for whatever, no matter how unfair.

Again, unless you are unionized, you have very few rights. And in determining whether you have any additional rights, the key question to ask is, "Why is this happening?" If your answer is, "I don't know," you really have no additional rights. If you can come up with a definite answer, you may have additional rights, but not necessarily so.

posted Mar 2, 2005 09:57 AM [EST]

Answer to IS IT HARRASSMENT? SLANDER ?

Supervisor Says She Lied

What rights you have depend on whether you work in the private sector or in the public sector, and whether you are or are not unionized. Another question that needs to be asked is, Why is this supervisor doing this? What is her motivation? Depending on the answer, you may have additional rights.

A statement that simply says, "She lied," probably does not amount to any form of defamation. It's too close to being opinion, and opinion is generally not actionable as defamation. In addition, in the context of the workplace, speech that might otherwise be defamatory receives certain additional protections.

posted Feb 25, 2005 07:54 AM [EST]

Answer to Contract position for 1 year, clause stating may not leave before then

Forced to Stay

An person cannot be forced to work for anyone. The 13th Amendment to the Constitution outlawed that. However, if there is a contract involved, that does not mean that a former employer cannot sue a former employee for damages resulting from the employee's premature departure.

posted Feb 23, 2005 4:09 PM [EST]

Answer to Severance

Entitlement to Severance

Your question raises complex corporate questions as to whether the acquisition by the new owners is a stock purchase or an asset purchase. If a stock purchase, your employer is technically just continuing on, so that no one is technically losing his or her job.

In any case, employees are not entitled to severance pay. About the only thing that an employer must pay an employee on termination is pay for the last pay period (if any), and accrued vacation (if any).

posted Feb 21, 2005 08:57 AM [EST]