Answers Posted By David M. Lira

Answer to Good guy-bad guy discrimination

Four in One

Certainly, if you can prove that an employer fired four employees because one employee was of Asian origin, then all four of the terminated employees have a case, even though none of the other three employees are Asian. But the big question is can you prove it? A rumor isn't enough.

One of the big problems with discriminations cases is that the anti-discrimination laws are laws requiring proof of intent. In other words, the employees claiming discrimination have to prove that it was the employer's intention to take an adverse action because an employee is, as in your situation, Asian. This level of proof essentially requires you to get into the employer's mind, a hard thing to do.

Another thing that is difficult about discrimination cases is that the employer is the one holding most of the cards. Rarely does an employer say something that basically admits discriminatory intent. Discriminatory intent might be proven by circumstantial evidence, but the employer is likely to be the one in possession of most, if not all, of the evidence that you would need.

This set of affairs makes it difficult for attorneys handling these types of cases to decide whether there is a win-able case there. You don't have the evidence. Because of that, we have to base our assessment of your case base on the limited information that you have. The information you have may not at all be admissible evidence. That is, it might not hold up in court, but it may be enough to make a preliminary assessment of your case. For example, the "rumor" you mention would likely not be evidence, but it may be enough to convince me that you may have a case. Whether the rumor is enough will depend who you heard the rumor from, where that person got the information, and content of the "rumor."

You also may have other information that you may not even consider important that might say volumes to an attorney assessing your case. The attorney will know what to ask. You may not always know what information the attorney may need. That is why it is so important in cases like these to have a back-and-forth free flowing discussion with the attorney assessing your case.

I'd be willing to discuss your case further. Give me a call.

posted Dec 12, 2001 10:02 AM [EST]

Answer to is there leverage ? (perhaps media publicity)

Is there Leverage?

In New York State, there is some limited caselaw which provides some protection to employees who rely upon an employer's representations to their detriment. It is very difficult to succed on these types of cases, and your rights under these legal theories are very easily lost. So, there is some leverage, depending on the specific facts of your case, but may be not very much.

Another piece of information: Sometimes in mass lay-offs, the employer relies on a detailed, written policy for determining what severance, if any, an employee is entitled to receive. Generally, employers have no duty to provide severance, but when they due pursuant to a written policy, that written policy may give rise to an ERISA plan. This is very important, in that, if there is an ERISA plan, you have a lot of rights you would otherwise not have.

In your case, if there was a written plan concerning severance, it may be very important to determining whether you have any leverage. If there was a written plan, you might want to do your best to get a copy of it.

posted Dec 6, 2001 1:27 PM [EST]

Answer to discrimination in 2001

When You're an Indian

The fact that you do not have "indian status" would not make a difference if you are in fact a native American.

You may believe that your manager discriminated against you on the basis of your race, but what you need to be able to do is describe the basis for your belief. What has this manager done and said that leads you to believe he either generally discriminates against Native Americans, or that he has discriminated against you because you are Native American.

Aurora is probably too far for me to conveniently represent you. If you contact me, I might be able to refer you to someone closer. Let me know what larger cities are near you.

posted Dec 3, 2001 08:50 AM [EST]

Answer to Mental and verbal abuse & harassment

The Generally Abusive Employer

In New York, if you have a generally nasty, abusive boss, there really isn't anything that you can do, except leave.

However, if you leave without being fired, you are generally giving up you right to unemployment compensation. If the treatment is so bad, you can seek a hearing on you application, and try to prove that the treatment was so bad that it constituted a "constructive discharge." If you succeed, and it is generally not an easy thing to prove constructive discharge, you should be able to get unemployment.

Note that the concept of constructive discharge is a technically difficult concept. However, there are very few employment lawyers who regularly practice before the unemployment compensation board on behalf of employees. I have only very rarely appeared in an unemployment hearing, and generally not because my client filed a claim for unemployment compensation.

Another possibility when dealing with a means, nasty boss is filing a workers' compensation claim. However, this suggestion pre-supposes that the stress caused by your boss's behavior was so bad that a doctor told you that you were no longer able to work under that boss.

posted Nov 27, 2001 11:50 AM [EST]

Answer to Can a company give me a document letting me know I will get severance and then later tell me I wont?

Entitlement to Severance from an Employer in Chapter 11

Your query is much more complicated than you know.

Generally, an employer has no obligation to provide employees with severance pay, and an employer can generally give certain employees severance without giving other employees severance.

However, your query indicates that a good number of employees have gotten severance, and severance was being determined by some pre-determined policy. This suggests to me that the employer decided to provide severance under a "plan" covered by the Employee Retirement Income Security Act ("ERISA"). If there was a plan, then the employer might have an obligation to pay you severance under that plan.

Conceivably, the employer might have neglected to follow the niceties of ERISA, but under circumstances creating a "de facto" plan. Whether that is the case in your situation will depend on the details of your case. Your query certainly does not provide nearly enough information.

If there is a plan, you need to obtain a copy of the "summary plan description" or "SPD." Maybe, but I don't know, that document you made reference to in your query is the SPD. The SPD is very important, in that it describes your rights.

Another complicating feature of your query is the fact that your employer filed Chapter 11. Again, any resolution of what you might be entitled to receive, and how, would depend to a large extent on what the SPD says.

posted Nov 27, 2001 11:25 AM [EST]

Answer to I have proof they are giving negative comments from the job ref.company I hired to prove their negat

Employer Giving Bad References

Whether your employer is saying anything defamatory depends on exactly what that employer is saying. Generally, to be defamation, the employer has to be saying something about you which seems to be a fact. Opinions, even if negative, generally aren't defamatory. So, if an employer says about an employee, "he stole money from us," that would likely be defamatory. But, if the employer says, "we don't believe she's been entirely honest with us," that probably would not be defamatory.

If we assume that what your employer is saying is defamatory, especially if the employer continues to say it, then you can probably sue the employer for the resulting damage.

posted Nov 26, 2001 09:06 AM [EST]

Answer to Bounced Payroll Check, Company Out of Business

Getting Paid by a Bankrupt Employer

Your question is really less of an employment law question and more of a bankruptcy question.

Under NY State common law and statutory law the employer certainly owes you the money, but, once an employer files bankruptcy, whether you get paid will depend on what happens in bankruptcy court. If your employer filed bankruptcy after your salary became due, your employer should have listed you as a creditor. As an employee who is owed wages, you should be entitled to priority treatment. If you are listed, you should expect to hear from the bankruptcy court.

You can go down to the bankruptcy court and check your employer's file to make sure you are listed as a creditor. If you are not listed, I suggest that you contact a bankruptcy attorney, particularly if your employer filed a Chapter 7 petition, or a Chapter 11 petition where it looks like it will eventually be converted to Chapter 7.

posted Nov 20, 2001 1:14 PM [EST]

Answer to picked on/disrespected by a boss

Protecting Yourself from Harassment

Unfortunately, to an extent, your union representative has something when he makes a distinction between "legal" and "illegal" harassment. The fact of the matter is that, in New York State, because of the employment at will doctrine, an employer has no obligation to be reasonable, considerate or kind. An employer may be bullying, nasty and rude.

Harassing behavior becomes illegal only if it is aimed a people because of a protected classification. Protected classifications include race, religion, national origin, gender, age and handicap. Thus, the boss's behavior would be illegal if it is aimed at you because you are black or white, male or female, Hispanic or Irish, etc.

Whether the behavior is illegal harassment will depend on the facts. I would look at things such as comments. For example, does the boss often use words which are insulting to members of certain racial, religious or ethnic groups. Does he talk about sex? Does he make sexist remarks?

But I would also look at conduct. For example, are certain people or groups excluded from meetings, social gatherings or training.

One of the things that bothers me about your situation is that you are apparently a union member. Even if we assume the harassment that you are experiencing is not illegal, I would think that the abusive treatment is a grievable issue under your union contract. Historically, employees unionize for better treatment. If you are being abused, I would think the union would be able to do something. I would suggest that you insist that your union rep do something. If he refuses to do anything, go over his head in the union.

If the abuse you are experiencing is illegal harassment, then your employer has an obligation to act. But you also have an obligation to complain, which you apparently have done.

Confidentiality raises some thorny issues. There doesn't seem to be an outright obligation to keep harassment complaints confidential. If there is any obligation of confidentiality, it arises because your employer has an obligation to prevent things from continuing or getting worse. However, it often becomes impossible for the employer to keep a complaint confidential while at the same time fulfilling an obligation to fix the problem. So, overall, that HR failed to keep your complaint confidential won't necessarily help you, but it all depends on what precisely happened.

If your employer has failed to act on a complaint of illegal harassment, you can then make a complaint to one of three places in your case: the federal Equal Employment Opportunity Commission, the New York State Human Rights Division, or the New York City Human Rights Commission. You can also start a lawsuit.

However, before going to any agency or court I suggest that you speak with an attorney. You have various rights in cases of illegal harassment. If you don't do exactly the right thing, you can easily lose some of those rights.

A last option you can exercise to protect yourself is leaving. But by leaving you might lose certain rights, so, again, before leaving, I would suggest that you speak with an attorney.

posted Nov 16, 2001 09:36 AM [EST]

Answer to My Sales Manager gets demoted and takes my job.

Private Sector Bumping Rights

You can't leave aside the "at will" considerations because those considerations determine what your rights are. Basically, the only rights you have are the rights of an "at will" employee unless you can demonstrate that you fall under some exception to the "at will" doctrine that would give you greater rights.

I don't see how you fall under any exception. Therefore, you don't have any bumping rights or rights protecting your from being bumped.

Bumping rights are really rare. Only union employees and civil service employees would have them, and then only under certain circumstances.

For those who have never heard of "bumping rights" before, if you have bumping rights, that means you can take over the job of another employee if your job is eliminated. When bumping rights exist, generally, more senior employees bump less senior employees. Bumping often starts a chain of bumping, leading , eventually, to the least senior employee losing the job. Most often, bumping comes into play in a reduction in force situation.

Your sales manager might not have any bumping rights, but, if your employer decides to bump you in favor of your sales manager, you have no way of preventing it, short of having some kind of agreement protecting you.

posted Nov 13, 2001 2:08 PM [EST]

Answer to Marital Status Discrimination

Unequal Pay Because Married

The New York State Human Rights Law prohibits discrimination in the terms and conditions of employment (including pay) on the basis of marital status. So, there is at least an argument that your employer violated that law when it converted your pay using your net, rather than your gross, UK salary.

However, I am not entirely sure whether you would succeed if you actually brought a case on this issue. The reason I have doubts is because when you say an employer has discriminated against you because of your race, marital status, etc., you are saying that the employer had the intention (the mind set) to disadvantage you because of your race, marital status, or whatever it is. Essentially, the anti-discrimination laws prohibit only intentional conduct.

I tend to doubt that your employer has something against married people. It seems like the employer is trying to save money. That is not illegal discrimination.

Now, there are different types of discrimination cases. A more common type is "disparate treatment." This is the type of case that gets directly into the issue of an employer's mind set.

There is another type of case called a "disparate impact" case. These cases deal with a practice that seems to be neutral but has the effect of disadvantaging a particular class of people more than any other. For example, the practice seems neutral but, at the same time, seems to eliminate most blacks, or most women, or most married people. Maybe your case is a disparate impact case.

But, disparate impact cases generally involve large numbers of people. What disparate impact cases do is essentially prove bad intent through statistics. That is, if a practice has an adverse effect on just one or two people who happen to be in a protected class of people (for example, they are black, or women, or married), the likelihood is that it is only coincidence that causes this apparently pattern of discrimination. As the numbers get bigger, statistically speaking the likely explanation for the pattern shifts from coincidence to intentionality.

In short, I cannot rule out the possibility that what your employer did is intentional discrimination, but, on the basis of information that you have provided, I doubt it. If you have other indications that your employer does not like married people, you may have something. If the practice has adversely affected a fairly substantial number of married people, but has had a neutral or positive effect on a substantial number of single people, you also may have something.

posted Nov 8, 2001 10:51 AM [EST]