Answers Posted By David M. Lira

Answer to Retaliation

3 Weeks and Out

Based on what you wrote, I don't see that you have any type of claim. The question that you need to answer is: What was the real reason for the employer letting you go? If the answer is your lack of experience, or "I don't know," you still would have nothing. But if the answer is something else, maybe you do.

posted May 29, 2001 4:30 PM [EST]

Answer to Termination and Unemployment

Getting Unemployment

I'm not an unemployment compensation lawyer. The few lawyers working steadily in this field generally represent employers or insurance companies. But, based on what I know, the key is your total tenure with an employer. Unemployment does not care whether you are probationary or not. As long as you are with an employer for a specified period, you get unemployment compensation, unless you were terminated for cause. Four years with one employer should certainly be enough time.

posted May 29, 2001 4:24 PM [EST]

Answer to false sexual harrassment charges

Handling a Harasser

As an employment lawyer, I am more likely than not to represent women (and it is usually women)who have been subjected to sexual harassment. Thus, I generally have very little sympathy for the usually male harasser. However, over the years, I have come to realize that there are precious few employers who know how to effectively deal with a sexual harassment situation. My feeling is that, if employers had handled the situation responsibility from the start, I wouldn't be in court with them. My experience also tells me that fewer than all sexual harassment claims are genuine.

Employers have an obligation to address, and where needed, remedy complaints of sexual harassment. They don't have a legal obligation to confront the harasser with the details of the harassment complaint, although, in my opinion, if they did so more often they would actually have less of a problem with sexual harassment complaints.

Because of the publicity some verdicts in sexual harassment cases have received, employers have sought advise from management law firms on how to deal with sexual harassment complaints. Although the advise these firms give may be grounded in the law, the advise more often than not shows very little knowledge of how workplaces function and how people interact. What management firms do is serve up something that looks simple and effective, but which is too often simple-minded and useless. They basically tell employers to adopt elaborate, cookie-cutter procedures. (For God-sake, there are computer programs which will prepare such a procedure for you at a cost of a few hundred dollars.) The result of setting up these procedures is often either one of two things: anything the person making the complaint says is held to be gospel; or anything the person against whom the complaint is made says is held to be gospel. As a result, complaints are too often either ignored, or overblown. Either way, typical management practices lead to abuse. Either the complainants are abused, or the accuseds are abused. The underlying workplace problem really is never addressed. The underlying problem might be sexual harassment, but not necessarily. However, whenever there is a sexual harassment complaint, there is a workplace problem of some kind. And that problem needs to addressed not so much from a legal standpoint, but from a human relations standpoint.

To make matters worse, management firms also advise employers not to give either the complainant or the accused any details about what the employer is doing about the complaint, and not to let the complainant and accused talk to one another. I think this advise has more to do with a fear by management firms that anything that the employer might say or do may later be used against the employer in a trial. That may well happen, but, in guarding against this fear, management firms are robbing employers of tools needed to effectively resolve problems in the workplace. To me, the advise is penny wise and dollar foolish.

Employer themselves also have to share the fault for ineffective practiices, although the failing is understandable. Employers give responsibility for dealing with sexual harassment complaints to the wrong people. They tend to give them either to managers or human resources people. The problem with giving these problems to managers is that managers don't have the time, even assuming they have the knowledge, to deal with the problem. These managers are too busy dealing with their regular areas of responsibility. As a result, the sexual harassment complaints get a low priority.

The situation with human resources departments is surprisingly similar. HR people tend to get consumed by problems having to do with health insurance, pensions and other benefits. They too have little time to deal with harassment issues, and also tend to give these issues a low priority.

Although very few employers now do this, it seems to me that the only way for an employer to deal effectively with harassment issues is to have a department devoted to only to handling discrimination complaints, something that only very large employers would be able to do. An alternative might be to have an outside firm actually handle these complaints. The idea, either way, is to get someone to deal with the problem who will give the problem a priority.

Although these opinions have less to do with legal requirements, and more to do with being practical, in my opinion, if an employer is to effectively and fairly deal with sexual harassment or other types of discrimination complaints, the employer has to first stop playing "CYA." Employers need to deal with harassment and discrimination problems more like production problems. In other words, they need to own up to the problems and look for solutions.

Rather than restrict the exchange of information among the various parties, employers need to increase communications. Rather than separate the complainant and accused, I believe the wiser course is actually to get them to sit down and talk to one another, in a controlled, safe environment, perhaps with an outsider, such as a mediator. The earlier this is done, the better in the long run.

The situation you describe sounds to me to be a situation where the employer is following stock management firm advise. The employer was told to document the complaints. They were also told to investigate, but I doubt that the investigation involved more than talking to the complainant and maybe one other person, and then only breifly. Once the complaints reach a certain number (usually two or three), terminate the accused. It is very simple advise, but I have a feeling that the underlying problem has never been identified, let alone addressed. The complainant may not yet be through with her complaints. She may just end up accusing someone new. If not this, then the accused will go someplace else and harass someone new.

Is the employer legally justified in what it did? Yes, definitely. Will it really deal with its sexual harassment problem? Maybe. Maybe not.

posted May 25, 2001 10:45 AM [EST]

Answer to thnaks will i be able to take them to court?

Gone Again

Probably not.

New York is an employment at will state, meaning that you can be fired at any time, for any reason, or no reason at all.

The only way to get around this rule is being able to show that the employer agreed to limit the circumstances under which you can be terminated. Although not strictly required, you generally need something in writing in order to overcome the presumption that the employer could let you go at any time.

posted May 23, 2001 1:02 PM [EST]

Answer to should I sue or take the money and run

To Sue or Not to Sue

The key law for age discrimination is the Age Discrimination in Employment Act. Generally speaking, you don't have an age discrimination case simply because you are 52 years old. In order to succeed in an ADEA case, you need to show that your employer selected you for termination, at least partially, because of your age. That generally involves more than your showing your age.

That those who have been retained are younger than you would be some evidence of age discrimination, but it might not be enough to prove age discrimination.

If you believe that your employer might be discriminating against you on the basis of age, you really need to speak with an employment lawyer. A discussion allows for the easier exchange of information. In truth, you personally may not have enough to prove age discrimination, but you've been there for 22 years. You may nonetheless have sufficient information, which might not necessarily be evidence, to let an experienced employment lawyer to get a feel for whether you have a strong enough case to pursue into court.

I believe that you are generally better off settling rather than litigating. Whether $45,000 is a fair settlement for you, I have no way of knowing. It depends on all sorts of things, such as how your employer has treated you up to now, what your chances are of finding comparable employment, your salary, etc. Again, you need to speak with an employment lawyer.

posted May 21, 2001 09:10 AM [EST]

Answer to Pension funding dropped in partnership buyout

Protecting Pension Rights

You can always ask for a severance package, but an employer has no obligation to give you a severance package.

Your real concern seems to be with the pension, but your situation is really a little more complex.

Basically, what is happening to you is that your old employer is firing you, and another employer is willing to pick you up without an employment application. Once you are fired by your old employer, you are going to be cut off from certain benefits. That is just the way it works.

However, there is a federal law protecting the pension benefits you have earned so far with the old employer. The law is called ERISA.

ERISA would probably require the employer to cut off continued participation in their pension program, but it would at the same time protect what you have earned so far.

With respect to the benefits that you have already earned (vested benefits), generally, you can do two things with it: (1) you can let the money stay with the old pension program, collecting interest, etc. When you get old enough, you would then be able to collect a pension. It might be reduced compared to what you could have gotten if you stayed with the older employer, but it could still be pretty valuable. (2) You could "rollover" the money into something like an Individual Retirement Account ("IRA").

Exactly what you would be able to do, and exactly what you would be entitled to receive depends exactly on how the pension plan is structured. ERISA requires that the employer (actually the pension plan) provide you information about your benefits. You should ask for a statement of your benefits. You should also ask for a copy of the "Summary Plan Description" or SPD. It might be helpful to get a copy of the "Pension Plan" with amendments, but the SPD would be enough. Based on the SPD, I or another attorney would be able to give you a more precise read on your rights.

posted May 17, 2001 11:18 AM [EST]

Answer to downsize

Changing Positions

I'm not sure what you mean by line and offline position, but that basically doesn't matter. In any case, just based on what you wrote, and assuming nothing more, the employer did nothing illegal by changing your job, and then eliminating your job a few weeks later.

However, experience tells me that employers too often try to hide illegal actions by arranging artificial transfers and lay-offs. To give you a complete answer to your question, I really need to ask you a question: Why do you think the employer transferred you and then laid you off? What is the real reason for the conduct?

posted May 17, 2001 10:45 AM [EST]

Answer to Can I quit with a contract?

Contracts Have Repercussions

The reason why an employee would want to sign a contract for a specific time is to get out of New York's employment at will doctrine, so that the contract will trump the employment at will doctrine. With a contract in place there will likely be repercussions to not living up to the contract, but exactly what the repercussion would be would depend, first, on the wording of the agreement, but also the nature of your job.

Interestingly enough, the 13th Amendment (banning slavery) to the U.S. Constitution probably would let you go to work elsewhere. But the fact that there is a contract still means you could be liable for damages. Damages would roughly be measured by how difficult you are to replace.

posted May 14, 2001 4:05 PM [EST]

Answer to Overtime

They can change their minds

The fact of the matter is that, in New York, with very limited other exceptions, unless you have something very specific in writing that is signed by your employer, your employer can tell you one thing one day, and do the very opposite the next day. This is a result of the employment-at-will doctrine, under which New York operates. It is very harsh, and is really amazing in that two giant corporations involved in a contractual relationship, each with an army of lawyers, cannot legally do to one another what an employer can do to an employee.

So, the short answer to your question is that, despite previous oral agreements, your employer can probably force you to work Saturdays. Actually, your employer can't force you to work any day. But, if you refuse, your employer can fire you. So, its six of one; half-a-dozen of the other.

Under New York State law, you are entitled to one day of rest per week. SO, there are consequences to the employer if he wants you to work 7 days per week.

Also, you are protected by federal and state wage and hour laws. That is, unless you genuinely are in a position that is considered exempt, you are entitled to time and a half for hours beyond 40 hours in a week.

Note that a lot of employers cheat on the wage and hour rules, for example making secretaries salaried employees, thinking that, if an employee is salaried, the employer does not have to pay overtime. That is not the law. And the wage and hour laws are generally applied in a way which favors the employee, unlike a lot in the employment law area.

posted Apr 13, 2001 09:22 AM [EST]

Answer to Do I have a harrassment case?

Protection against a Perception

You probably don't have a claim for sexual harassment. The term "sexual harassment" really means that you are being harassed because of your gender, whether male or female. That does not seem to be the case here.

Your description of the situation suggests a claim of harassment based on sexual orientation (homosexual or straight). Generally, harassment based on sexual orientation is not illegal. But there are lots of exceptions based on where you work. For example, if you work in New York City, or either county on Long Island, you would be protected from harassment based on sexual orientation.

Your situation raises a problem. If I understand correctly, you are straight, but your boss perceives you to be homosexual. In essence, you are being harassed on the basis of perceived homosexuality. I doubt that the statutes that may apply in your situation specifically address this situation, meaning that your situation may or may not be covered.

Some civil right statutes (the Americans with Disabilities Act comes to mind as an example) have specific statutes dealing with discrimination based on perception. Most do not. However, many civil rights statutes are read fairly broadly because their purpose is to eliminate discrimination. Therefore, provided that you work in a county with a statute prohibiting discrimination based on sexual orientation, you just might be protected from the type of harassment you describe. Therefore, your employer may not be allowed to make the type of comments he has apparently been making to you.

Exactly what you can do depends on the statute you may fall under. In New York State, however, you are generally permitted to bring a claim of this nature to a local Human Rights Commission (not the New York State Division of Human Rights because the NYSDHR would not have jurisdiction) or New York State Supreme Court.

posted Apr 10, 2001 09:54 AM [EST]