Answers Posted By David M. Lira

Answer to responsiblity for paying insurance premium if I extrend my FMLA leave

Premiums and FMLA

FMLA provides only 12 weeks of leave, during which the employer remains responsible for paying for things like health insurance, to the degree paid for those benefits when employees are not on FMLA leave.

Here, you are talking about extending your leave. I'm not sure what you mean by that. If you are talking about extending FMLA leave beyond 12 weeks, then your question no longer has to do with FMLA, although it might have to do with the Employer Retirement Income Security Act ("ERISA"). You rights under ERISA will depend on what the Plan and Summary Plan Description says to the insurance program you are talking about. If you don't already have them, get copies of the SPDs for the insurance programs you are worried about, either from your employer or the insurance company involved. I would be able to answer your question based on what the SPDs say.

You also talked about using you vacation time. I assume that you have a lot of acrued vacation. Although the SPD or Plan documents would still govern, if employees on vacation are not normally required to pay the insurance premiums, then you should not be required to pay the premiums because you are using vacation to take care of something that might otherwise be covered by FMLA. That might be considered to be discrimination under ERISA. The anti-discrimination provisions of ERISA require employers to treat similarly situated employees equally.

posted Aug 29, 2001 2:35 PM [EST]

Answer to Docked hours for a salaried or exempt employee

When are you really exempt?

The Fair Labor Standards Act has some interesting ins and outs that often make giving firm answers difficult.

With respect to unapproved at home work, I am not exactly sure what a court might due in a case under the FLSA, although my gut tells me that the court would tend to find the need to get approval to do work at home as proof that you are a non-exempt employee.

With respect to docking you, the answer is a little clearer. If the employer docks you for complete days you are not at the office, that would be ok. If the employer docks you for part days, that would tend to show that you are a non-exempt employee. So, if the employer docks you for one hour because you left at 4 PM, rather than 5 PM, to do 3 hours of extra work at home, you might not be entitled to compensation for the 3 hours at home, because you did not get approval, but you would likely be entitled to overtime compensation for extra time you put in at the office on the other four days of that week and for the other days during other weeks as well.

posted Aug 27, 2001 10:19 AM [EST]

Answer to Release of harmful information

When your ex-employer says bad things about you

If you believe that your employer is saying something false about you when you list that employer on employment applications, there is really nothing you can do to stop the employer from doing that. However, you might be able to sue the employer for defamation.

Now, defamation is a curious animal. A statement is not necessarily defamation simply because it is negative. If it appears to be an opinion, rather than a fact, it isn't defamation, even if untrue. To be defamation, it has to look like a fact, and it has to be untrue.

Defamation cases are also rather tricky in New York State. First, you need to get the words. It is not enough for you to say that you think the employer is saying something negative about you. There are commercial services out there that will document for you what the employer says on a reference check. If you would rather not use a commercial service, you could get someone reliable and who would be available to testify for you to pose as someone checking references, to see what your former employer is saying about you.

The statute of limitation on a defamation claim is one year from the time the statement is made. Thus, each time the defamatory statement is made, a new one year period begins.

posted Aug 27, 2001 10:03 AM [EST]

Answer to Abuse at work.

Harassment isn't Necessarily Illegal

What you describe sounds like harassment, and I've had cases where the type of behavior suffered by my client sounded a lot like the type of behavior you've been subjected to. However, believe it or not, harassment is not illegal. Only harassment motivated by certain reasons is illegal.

Harassment is, generally, not illegal because of the employment at will doctrine, which not only says an employer can fire you at any time for any reason or no reason at all, but also says an employer can treat you any way at all, no matter how unfair or abusive. Under the employment at will doctrine, your only remedy is to quit. The doctrine does not require you to give notice. You can just leave at any time, for any reason, or no reason at all.

Harassment becomes illegal only if undertaken for certain reasons made improper under specific laws. Thus, it is illegal to harass someone because that person is of a different race, national origin or sex, as examples. It might be illegal to harass someone because of that person's age, or because that person has a handicap, as further examples.

It would also be illegal to harass (or fire or otherwise deny someone a benefit of employment) because that person has exercised certain legally protected rights. For example, if someone believes they have been subjected to sexual harassment, and that person has a factual for believing that is so, even if that person is ultimately wrong, that person has a legal right to complain of the sexual harassment. If the employer responds to the complaint by abusing the employee that would be illegal. Although the conduct constituting the abuse might be described generally as harassment, as a legal technicality, it would be called retaliation.

Another example of an employee being "harassed" for exercising a legally protected right might involve some type of job benefits. Sometimes, an employer may want to keep costs down, and the employer might get carried away by, for example, abusing an employee because the employee has exercised workers' compensation benefits, or even health insurance benefits. Although the behavior might be described as harassment, the technical term for this type of conduct, perversely enough, is discrimination.

Although the description of the conduct you have experienced is important, the more important question is why you believe you are being subjected to the conduct. If the only explanation is that someone just doesn't like you, you really don't have anything illegal, and that might explain why HR has not acted on any complaints. (HR might not have a legal obligation to respond, but to me their inaction is not very smart. You don't have to be right to start a lawsuit, and, when HR fails to respond to an employee complaint, HR is just inviting a lawsuit. The employer might well win that lawsuit in the end, but it will cost in legal fees. The smarter and cheaper thing to do might be to act on the complaint.)

posted Aug 22, 2001 1:16 PM [EST]

Answer to Owed severance of two months. Company HR person will not respond.

Getting An Employer to Honor Its Severance Agreements

You can sue your former employer in state court on the severance agreement.

Some employers work under a misconception that, once an employee signs a severance agreement, the employee can never sue the former employer for anything. That is not true. When you sign a severance, at most you are giving up any right to sue the employer for any claims that have come into existence at any time up to the date of the agreement. A typical severance agreement will not address anything after the date of the agreement.

Now, if you have a signed severance agreement (contract), and the employer then fails to live up to its part of the agreement, a new claim in your favor arises under the agreement.

Note that everything depends on the precise wording of the agreement, but you probably can sue on the agreement.

Before suing, you might want an attorney to send a letter to the employer requesting payment pursuant to the agreement.

You claim under the agreement has a six year statute of limitations, measured from the date that the employer should have made a payment to you but failed to do so.

posted Aug 22, 2001 12:49 PM [EST]

Answer to Verizon violates it's own Policy

Company Policies Mean Nothing

You have no case. It is the rare case in which you can use a company's policy as a basis of a claim against the company. In New York State, the state of the law is such that I am often of the mind to say that an employer can lie in its policies and not be held liable for the lie.

posted Aug 21, 2001 09:39 AM [EST]

Answer to Can a company change their procedures for annual employee goals ?

Changing the Rules

You have a long question, but the answer is simple, and you won't like it: Yes, the employer can change procedures without telling you.

The answer is governed by the employment at will doctrine. This doctrine basically says that an employer can fire you at any time for any reason, or no reason at all, provided the reason is not one otherwise prohibited by law. No law prohibits private employers from changing rules at any time. And, in an extension of the employment at will doctrine, private employers do not have to be fair. They can be as arbitrary as they wish. If you don't like it, you can leave, at any time, for any reason, or for no reason at all. Employee handbooks, under the employment at will doctrine, mean very little. They mean so little that, in my view, an employer can lie in a handbook and usually get away with it.

posted Aug 17, 2001 09:54 AM [EST]

Answer to Can I be fired for poor performance on a job that I wasn't hired to do?

Being Fired for Work Not Part of Job

If you worked for a public employer, such as NY State, or a city or county in NYS, you could have gotten a court order preventing the employer from requiring you to work out of title.

But you are in the private sector, so that the employment at will doctrine applies. What this doctrine basically says is that you can be fired for any reason or no reason at all. Thus, performance is not even an issue. Whether the duties for which you were faulted were within your job title is not an issue. Your employer could have fired you anyway.

There are exceptions to the employment at will doctrine, such as for improper discrimination. However, your query doesn't seem to raise anything that would suggest that you fall into an exception.

posted Aug 14, 2001 5:27 PM [EST]

Answer to HELP

Looking at Your Personnel FIle

In New York State, unlike many other states, you have no right to see the contents of your personnel file.

posted Jul 31, 2001 4:29 PM [EST]

Answer to Severance pay taxes?

Deducting Taxes from Severance Pay

This is really a question that should be directed at a tax attorney. However, my experience is that employers will almost always insist on deducting income and social security taxes from severance payments because of a fear that they will be liable for the taxes if the employee fails to pay, and may face penalties even if the employee reports the income. Now, I have not gone through IRS regulations to see whether this is true, but based on other secondary material the employers may have a genuine basis for concern. Thus, the answer to your question is probably yes.

posted Jul 31, 2001 4:25 PM [EST]