Answers Posted By David M. Lira

Answer to Where do I need to claim severance pay?

Severance As Income

You should really talk to a tax specialist about this.

From my experience, most payments made under a severance agreement are made in lieu of salary, so that severance payment will almost always be treated just like your regular wages, that is, as ordinary income. You need to treat severance payments as you would salary. Most of the time, employers will make the usual deductions for taxes, and include the severance payment on a W-2 at the end of the year.

posted Jul 27, 2001 09:55 AM [EST]

Answer to Limiting employee hours to eliminate overtime.

Limiting Overtime

Any employer can limit overtime, public or private. In fact, if you were to read one major law governing overtime, the Fair Labor Standards Act, you would think that federal policy is that employees should not be working overtime, unless it is really necessary.

Public employers, unlike private employers, have an additional way to avoid actually paying overtime. Rather than pay you for overtime, public employers can give you compensatory time.

The only way an employer, public or private, might get into trouble for not allowing overtime is if it is done on a discriminatory basis. When I say discriminatory, I mean because of race, religion, national origin, gender, etc.

posted Jul 25, 2001 10:08 AM [EST]

Answer to Payment of vacation owed and severance pay after being layed-off when Co. filed for Chapter 11

Getting Paid When Your Employer FIled for Bankruptcy

Generally speaking, once you have earned pay or some benefit, it can't be taken away from you that easily. So, in most situations, you are entiled to the 3 weeks vacation from last year. The vacation from this year might be a little more questionable. It all depends on how your company usually handles vacation pay. (The problem is that I don't know how you company allows you to accrue vacation time.) You may not have as yet earned the full 3 weeks of vacation for this year.

I am assuming that the severance plan is set up as a welfare or benefit plan under ERISA. You would know if it is covered by ERISA if the company distributes a "summary plan description" of the severance plan. If you ask, you should be able to get a copy of this "SPD." It might be a good idea for you to get a copy of the SPD. It might be needed to determine your precise rights, even in bankruptcy.

When there is a bankruptcy, a lot of the usual rules just go out the window. I am not a bankruptcy attorney, and, if you want a more enlightened answer, you might want to consult a bankruptcy attorney. I am particularly unsure about the status of the severance plan when there is a bankruptcy involved. When it comes to your vacation pay, you don't necessarily lose it, but it can be tied up for a period of time. The good news is that it should receive special treatment because I believe vacation pay would be a priority claim under the bankruptcy laws.

In any case, sooner or later, you should be hearing from the bankruptcy court. At that point, the court will instruct you on how to file a claim.

posted Jul 24, 2001 12:20 PM [EST]

Answer to Two hotels sold by Loews Corp. to New Hampshire and Resorts/the buyer paid Severance to some people

Entitlement to Severance Payments

Generally speaking, in a termination situation, you are not entitled to severance, but, in some, but not all cases involving fairly sizeable lay-offs, often connected with a mergers or acquisition of some kind, severence payments may fall under the Employee Retirement Income Security Act ("ERISA"). This is what you need to check out.

ERISA is important because, if the severance payments fall under ERISA, then employers are prohibited from "discriminating" among similiarly situated employees. Here, discrimination would mean giving some employees in, say, a particular title severance payments, but not other employees in the same title.

First, be sure who was paying out the severance. In my experience, it is usually the selling company which does the lay-offs because the buying company wants to avoid liability exposure for terminating employees.
Second, if a fairly good number of employees were involved in the lay-off (I'd say roughly at least 20 to 50, although their is nothing in the law that says the number of employees has to be this large), then ask the company doing the lay-offs whether there was a "summary plan description" (or "SPD") governing who gets and does not get severance benefits. If there was an SPD, ask for a copy of it. The SPD will define your rights, if any. If there is an SPD, it would be far easier to tell you what your rights are.

It is possible to have a situation where there is no SPD but the severance payments would be considered to be covered by ERISA regulations. But, I would usually say that, if the lay-offs involved only a few very select employees, it may not involve ERISA at law.

posted Jul 23, 2001 09:43 AM [EST]

Answer to Employment Transfer

Employment Transfer and Termination

Unless there are a lot more facts to your case, you are probably out of luck. New York is an employment at will state, so that you could be terminated at any time for any reason or no reason at all.

posted Jul 17, 2001 08:01 AM [EST]

Answer to Termination

Terminated for "Attitude"

Your question raises two issues: (1) concerning the misleading information being provided by the senior colleague; (2) the termination itself.

The first issue suggests a possible claim of defamation, but whether what is being said is defamation depends on exactly what is being said. Even if we assume that what is being said is defamatory, it would be granted a qualified protection under the law ("qualified privilege"). The privilege arises because the communication is to your employer about your employment. Thus, any defamation claim, which would be against the senior colleague, would be at best very difficult to win.

As to the second issue, I am assuming that you work in the private sector, and have no union or other employment agreement. IN such a situation, you are an employee at will. That means you can be terminated at any time for any reason, or even no reason at all. You can even be terminated for an untrue, incorrect or unfair reason, as long as the reason does not fall into certain prohibited reasons, such as discrimination because of race, national origin, religion, etc.

THus, there probably isn't very much you can do.

posted Jul 17, 2001 07:51 AM [EST]

Answer to FMLA time and Disability

FMLA Didn'T Give You Anything More

The Family Medical Leave Act was really designed to give employees who never before had any rights to leave time to take care of certain types of family situation a new set of very limited rights. As a result, the law was written in such a way as to permit employers who already gave their employees leave time to offset the leave time they were already giving their employees against the leave they are required to give employees under FMLA. FMLA leave is, of course, leave without pay. Thus, employers can offset paid leave time against FMLA leave.

posted Jul 5, 2001 4:35 PM [EST]

Answer to was this a discrimination? was this a racial discrimination?

Not sure

I wasn't sure from your question whether you were talking about you or about how your boss selected between #1 and # 2.

If you were asking whether you have any recourse if your boss, given his history with P, decides to blame you for selecting #2 over # 1, my answer is probably not.

If you were asking about the selection between #1 and #2, my answer would be that, from what you've told me, I don't know whether there has been race discrimination. The fact that one was white and the other black might be one piece of a pattern that might be discrimination, but that one fact alone is not usually enough to establish discrimination.

The reason I decided to respond to your question really related more to your use of the word "discrimination." Discrimination is really not illegal. For example, say we have two employees with similar backgrounds, including the same race, religion, national origin, sex, etc. Both are going for a promotion. Of course only one will get the promotion. Because only one can get the promotion, you can say that the one who did not get the promotion was discriminated against, and the one who got it was discriminated for. The word "discrimination" really means choice. You choose between or among for various reasons. A person with "discriminating tastes" is someone who is capable of making the best choice among good selections.

When an employment lawyer is talking about "discrimination," that lawyer is really talking about the act of choosing for an improper reason. Thus, to select someone because of race or the other "protected classifications" becomes illegal only because the selection was based on that protected classification.

To anwer your first question ("Was it discrimination"), whether we are talking about you or the selection between #1 and # 2, we are of course talking about discrimination because someone is making a choice. If your boss decides to blame you so he can avoid getting hung out to dry because of two bad hiring choices by him, the choice to blame you is discrimination, but not the illegal kind. It is just a choice. Maybe not an ethical choice. Maybe not a fair choice. Maybe a bad choice. But not an illegal choice. With respect to selecting between #1 and #2, it is of course discrimination because we are talking about a choice.

However, the selection between # 1 and #2 is not necessarily an illegal type of discrimination. I really cannot tell whether your boss illegally discriminated. For all I know, #2 might be his brother-in-law, or someone he owes money to. If he selected #2 because he's related or as pay back, it might be a bad business decision, but it isn't necessarily illegal discrimination.

To determine whether a situation is really illegal discrimination, you generally have to look at the bigger picture. Let's say that in all the years you have worked for this guy he has never hire a black person, even though there had been a lot of good candidates. Let's also say that he is always making derogatory remarks about blacks. Let's say he always has negative comments about black employees in other departments in the company. These additional facts, along with the fact that #1 was black, now starts to suggest a more firmly based conclusion that the selection of #2 was racially motivated. But even then there may be room for debate.

Employer lawyers will tend to tell you things that may lead you to believe that race claims are based on almost nothing and are easy to win. The opposite is true. Race discrimination claims are tough because they require such a detailed consideration of the facts.

Now back to you. There is another concept that often goes hand in hand with discrimination. That other concept is retaliation. "Retaliation," in its legal sense, means one person taking an adverse action against another because that other person exercised a legally protected right. A legally protected right would include making a claim of race discrimination. Another legally protected right (or responsibility) is helping another person who might make or is making a race discrimination claim.

Let me give you an illustration of how that might work. Let's say that because your boss created such a problem by hiring P, the manager no longer trusts his hiring decisions. As a result, before hiring #2, the manager comes to you and asks you who you think is the better candidate. You say #1.

The manager asks you why you prefer #1. You say, because he has far more technical competence.

The manager now asks you why you think your boss recommended #2. You say that you believe its racial.

Now, the manager goes back to your boss and confronts him with the possibility its racial. The boss fesses up. He says he selected #2 because #2 is his brother in law. #1 gets the job.

It doesn't end there. Your boss is now angry with you because you mentioned race. He does all kinds of things to you because of what you said. That would be retaliation, and illegal. You could sue your employer if it doesn't end fast. (Before suing in a situation like this, you should make a complaint to someone beyond your boss, claiming retaliation.) And, interestingly enough, it would still be retaliation even though you were wrong about the actual motivation behind your boss selecting #2, as long as there was a good faith basis for your saying it was race discrimination as opposed to something else which might have been unwise but not necessarily illegal.

Let's go back to your example. Let's say you get fired because your boss tells the manager that you recommended #2. That's a lie, but your termination is still perfectly legal because under New York's employment at will doctrine you can be fired at any time for any reason, even if the reason is false. Interestingly, your termination would still be legal even if the real reason for selecting #2 was race discrimination. Your termination would still be legal because you never complained about the race discrimination in any way, and you were not helping #1 or the company deal with a possible race discrimination problem. In other words, you had not done anything that might have protected you.

posted Jun 14, 2001 3:03 PM [EST]

Answer to Unintentional Retaliation ???

Retaliation Requires Intent

I believe I answer this issue in my last response: By definition, a claim of retaliation requires proof of intent. But proof does not have to be direct proof (that is, you don't need the actor to say it was intentional). Circumstantial evidence can be used to prove intent. Also, an employer's audit or investigative finding do not bind the employee claiming retaliation. Thus, even though an audit says it was unintentional, the employee does not have to believe it, and, unfortunately, when employer investigate claims of discrimination or retaliation, some of them have a tendency of skirting the issue by finding either it did not happen or was not intentional.

posted Jun 6, 2001 12:32 PM [EST]

Answer to I think I said it all.

Retaliation for What?

The term "retailiation" generally means that an employer essentially punished or otherwise took an adverse action against an employee because the employee exercised a right granted under some statute. There are a lot of statutes that prohibit retaliation, including NY's Workers' Compensation Law, and federal, state and local antidiscrimination laws. Very few of these laws say how someone would prove retaliation. Caselaw under these statutes prohibiting retaliation generally do not require proof of actual knowledge that the employee exercised some right, only that the adverse action took place under circumstances which could lead a trier of fact to conclude that the employer or person taking the adverse action knew or should have known that the employee exercised a protected right. Generally, there has to be some level of proof connecting the adverse action to the exercise of a protected right, although the proof may be circumstantial.

posted Jun 4, 2001 10:49 AM [EST]