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These stories were published in U.S. 1 Newspaper on January 27, 1999.
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Landmark Firing Case: Employer Beware
If you are ever fired, you might want to keep in mind
the three rules espoused by noted financial editor Marshall Loeb.
Loeb’s three rules:
from the Medical Inter-Insurance Exchange (MIIX), the Princess Road-based
medical malpractice insurance company. The firing took place on the
day when Riddell returned from a medical leave for a back problem.
That day, in return for her severance package, she signed an agreement
specifying that if she ever filed suit against her employer, she would
have to forfeit the severance monies.
But the following morning Riddell began to question the deal, and
she went to an attorney, Elizabeth Zuckerman of Zuckerman &
Fisher on Lenox Drive. An alumna of the University of Michigan, Class
of 1982, Zuckerman has a law degree from the University of California
at Davis and worked in the state deputy attorney general’s office
and was a director at Mason Griffin & Pierson on Poor Farm Road before
joining George Fisher to open a dual practice in 1997 (U.S.
1, September 10, 1997). Zuckerman filed suit alleging age discrimination,
disability discrimination, and overtime payments.
The results of Riddell’s suit against MIIX are helping to make legal
history — and to fatten corporate lawyers’ pockets. Because a
federal district court said that Riddell’s severance agreement was
not a deterrent to a discrimination suit, severance agreements are
now under intense scrutiny. Human resources staffers take note: The
severance agreement that your company used before may not hold up
in court now.
Neither Riddell nor her attorney would comment except to say that
the case appears to be resolved (and presumably will involve a cash
settlement). But the matter was aired in Lawyer’s Weekly USA (http://www.lawyersweekly.com)
on December 14, 1998, under the headline "Severance Agreements
Should Be Rewritten."
In an October, 1998, decision, Judge Mary L. Cooper of U.S.
District Court in Trenton ruled in favor of Riddell, saying that the
agreement was not valid, and that she could sue for a better severance
package. She did not have to return her severance pay. "Forcing
employees with serious health problems to tender back their severance
benefits," wrote Judge Cooper, "would deter meritorious challenges
to releases of Family Medical Leave Act claims and thus undermine
Congress’ goal of encouraging job security for such employees."
Bottom line: Anytime you fire someone, give that person all the protection
that you would give to an older worker. Older workers (those over
40 years old) get special protection under the Older Workers Benefits
Protection Act (OWBPA). They have special severance agreements. Use
them as a model, say the experts, for every other severance agreement.
"Anything less than that," Zuckerman was quoted as saying,
"and an employer may be asking for trouble."
A legally sound severance agreement should:
workers to take from 21 to 45 days before they must sign the agreement.
rescinded, even though it has been signed. The OWBPA allows seven
up. These claims might include claims for disability, discrimination,
breach of contract, unfair discharge, and/or monies owed for overtime
take this into account.
<B>Stephen Mitchell Sack also offers advice to the
employees who are being asked to sign these agreements. Sack’s new
book, "Getting Fired: What to Do if You’re Fired, Downsized, laid
off, Reconstructed, Discharged, Terminated, or Forced to Resign"
(Warner Books, $24.95), is full of tips, sample forms, and letters.
Sack provides boilerplate documents for the employer and the employee,
everything from a demand letter for ERISA retirement benefits to a
sample trade secret and confidential information policy statement.
Sack, a New York-based author and lawyer, offers the obvious strategies
that a fired worker should use when asked to sign a release. Read
it carefully. Speak to a lawyer immediately when your employer asks
you to sign a release. Less obvious tips:
lets the company take back its money if you tell others about your
prohibit you from working for a competitor or starting a competing
sure the agreement will be null and void if any monies due under the
agreement are not paid. Include a guarantee that obligates the parent
company to pay all remaining sums due under the agreement in the event
a subsidiary becomes bankrupt, insolvent, or fails for any reason
to pay the amount due."
get the employer to give you a release whenever you are giving one
to the employer. This is because you want to be sure that the employer
can never sue you at a later time for something you did."
Be sure you are satisfied with the offer. Ask for at least an additional
month’s severance in return for waiving any claims. When it comes
to the actual negotiations:
the most sympathetic person at the company to negotiate with.
Request an additional negotiating session to discuss your severance
company to settle for five.
to sign it before you sign the waiver.
of "Getting Fired," it is better to get fired.
Being old is no longer the major reason to sue for age
discrimination. Now you can sue for being young, says Steven M.
Berlin of Buchanan Ingersoll on College Road. In fact, what with
recent court decisions and EEOC guidelines, employees can sue for
just about anything, so employers must beware.
Berlin speaks at a two-day "Personnel Law Update 1999" conference
scheduled for the Sheraton Hotel in Edison on Wednesday and Thursday,
May 26 and 27. The conference is staged by a national group, the Council
on Education, and costs $595. Call 800-942-4494.
Berlin is an alumnus of the University of Maryland at College Park,
Class of 1977, and went to Brooklyn Law School. For Buchanan Ingersoll
he represents Foodarama Supermarkets Inc., a national trucking company
(Dana Transport), and an information technology firm based in Edison,
Intelligroup Inc. His topic for Thursday, May 27, at 11 a.m. is how
to understand the rules on retaliation set forth by the Equal Employment
"The EEOC’s recent guidance on retaliation will mean an overwhelming
number of new lawsuits alleging retaliation," says Berlin, referring
to the United States Supreme Court’s "Robinson v. Shell Oil"
decision. After making a race discrimination claim against Shell Oil,
the worker applied for a job elsewhere and was given a negative reference
by Shell. Claiming wrongful retaliation, he brought a lawsuit under
Title VII of the Civil Rights Act. The oil company countered that
since the plaintiff was no longer a Shell employee, Title VII did
not apply. They lost.
Last May the EEOC adopted a guidance against retaliation for any protected
factor — race, age, disability, gender, or equal pay, and, says
Berlin, "the third circuit court of appeals tends to follow EEOC
"Poor performing employees are already able to find refuge from
discipline and termination by hiding behind employment laws, making
you feel like your hands are tied. Now, even the slightest actions
by employers can serve as the basis of liability. And the new guidance
protects more employees than ever before."
or someone closely associated with someone who engaged in protected
retaliation. If you made the claim and your claim was not upheld,
you are still protected, says Berlin. He gives an example:
"A husband and wife work in a company. The husband claims he was
wrongfully treated and is fired. He gets a negative reference. The
wife who had been a good performer — but never complained —
starts getting treated adversely. She doesn’t complain but her secretary
does. All three would be protected under this guidance."
"The lesson for employers — and it’s an old one," says
Berlin, "is to have good documentation for employment action.
When you do give a performance appraisal don’t be too charitable because
if the performance is unacceptable later, you will have to deal with
the inflated evaluations."
If you have a progressive discipline policy, follow it and document
it, so if you claim poor performance and the worker claims retaliation,
you have your performance claims documented.
"Many of the emerging high tech companies on the Route 1 Corridor
don’t have a human resource structure in place," says Berlin,
"so they need to be mindful of the ABCs of good human resources
The program also features two Archer & Greiner attorneys, Steven
W. Suflas who will speak on common exempt/non-exempt classification
mistakes that can leave an employer exposed to overtime liability,
and Louis L. Chodoff, speaking on workforce professionalism
standards. A corporate lawyer for Lucent Technologies, Joseph V.
Ippolito will discuss how the most recent Supreme Court cases impact
more than just sexual harassment. Other topics will be proactive safety
measures to head off workplace violence, best practices in witness
interview techniques, improving organizational ethics to decrease
liability exposure, and improving termination practices so as to stave
off wrongful termination lawsuits.
Wrongful termination lawsuits are often based on older
workers claiming they were fired for being old, but in a newsletter
for Buchanan Ingersoll clients, Steven M. Berlin (see story
above) cites a case in which someone claimed he was fired for being
young. In "Bergen Commercial Bank v. Sisler," the New Jersey
Supreme Court held that the protection of the New Jersey Law Against
Discrimination (LAD) is broad enough to accommodate claims of age
discrimination based on youth.
"A terminated 25-year-old, who was replaced by a 31-year-old,
sought to invoke the anti-age discrimination provisions of the LAD
on the grounds that he was terminated because his employer perceived
him to be too young for the job," writes Berlin. "Acknowledging
that the federal Age Discrimination in Employment ACT (ADEA) allows
age discrimination claims only for individuals over the age of 40,
the Court ruled that the LAD’s prohibitions against age discrimination
protect employees from ages 18 to 70."
Nevertheless, says Berlin, the court did recognize that older workers
are historically disadvantaged. For a younger worker to win an LAD
age discrimination suit, he must prove the following:
against the majority, i.e. younger workers.
employer’s legitimate expectations
candidate to permit an inference of age discrimination (even if
the replacement was also under 40.
where age is the determinative factor," writes Berlin. Employers
must also evaluate the impact that employment decisions have on persons
of all age categories covered by the LAD. The decision makes clear
that practically the entire workforce falls under the protections
of the LAD.
Says Berlin: "People need to think twice before they terminate
anyone in any category."
— Barbara Fox
Not since the technological breakthrough of Gutenberg’s
printing press," says Gary Yanker, "have book publishers
been in more desperate need of a new intellectual property strategy
to protect and enhance the intellectual assets they have been developing
for hundreds of years." Yanker is teaching a new graduate level
interdisciplinary Global Intellectual Property course at Rutgers Graduate
School of Management (the business school) in the fall semester in
New Brunswick. Individuals from the business community may enroll
in this course for about $1,200. Call 732-445-5816 or check http://www.business.rutgers.edu.
A graduate of Columbia University, Yanker is an attorney with an MBA
who has advised more than 50 global companies and more than 100 entrepreneurs
and artists on how to develop an IP strategy and portfolio of IP assets.
Graduate students from all disciplines — including science, law,
communication, fine arts, and engineering — may take the course.
Entrepreneurs, artists, scientists, engineers, and executives will
be invited to be panelists and participants — through private
interviews — in the course.
Defined as "the art, business, and science of protecting creative
and technological ideas," intellectual property law is an umbrella
term for ways to protect ideas using five tools: trade secrets, copyright,
trademarks, patents, and contracts. With his "global" emphasis,
Yanker will treat intellectual property protection from an entrepreneurial
and creative point of view.
"Book publishers have become the dinosaurs of the media industry
group," says Yanker, pointing to such problems as poorly researched
or edited manuscripts, late or untimely publications, book returns,
lack of multimedia marketing plans, and co-opting by Internet descendants
of the publishing franchise.
"Many publishers and booksellers are not aware of the new ways
they can better protect their products," says Yanker, pointing
out that since the printing press was invented the book publishing
business has remained a predominantly quill and paper industry, plagued
with old-fashioned ways of producing and distributing books.
Yanker will show how to apply the five IP tools to enhance the value
of such publisher contract assets as books and articles. He will show
ways for literary and visual authors, editors, agents, publishers,
and booksellers to develop the ideas that underlie their valuable
assets. These could include the creation of book ideas, the editing
and publication of unpublished manuscripts, and the manual merchandising
of printed and digitally distributed books.
Yanker will cover these intellectual property methods:
sold, and distributed.
how consultants can change from being a "wage or fee slave"
into an asset builder or manager. By neglecting to develop their intellectual
property into idea assets, companies in many professional areas —
advertising agencies, law firms, brokerage and investment houses,
and management and freelance consulting firms — have allowed their
know-how to escape to their competitors and even into the public domain.
"They have become highly paid wage slaves who keep reinventing
the wheel in how they do research and advise clients," Yanker
When knowledge is converted into long-lived business assets, it is
"housed globally," as Yanker puts it, and it can dramatically
improve the company’s net worth. He will show how an agency or public
relations firm can protect its pitches and proposals as trade secrets,
and how law firms can be capitalized as businesses, and how accounting
firms can trademark various service business methods.
"The practical impact on service providers may be that they will
be able to use their professional time in a more savvy way," says
The State’s Case
Now the entrepreneur, the attorney, and the bureaucrat
can work off the same page. The state’s 94-page book "Doing Business
in New Jersey" can answer all your questions about state regulations
and more. Published last year it is available for $5 by calling 973-353-5950.
Interlaced between the nuts and bolts rules is some good advice. A
chapter on procurement activities, for instance, has more than two
dozen names, addresses, and phone numbers of the agencies you might
need to contact, everything from bonding agencies to agencies that
issue bidding lists. Qualifying as a government contractor still seems
like an onerous task, but at least what you would have to do is all
set out for you.
The chapter on regulations for starting a new business has a sample
business plan outline and lists of "Smart Risks" and "Foolish
Among the smart risks: Assess your company’s credit policy carefully.
Realize that some customers won’t pay on time and some won’t pay at
all. Hire people who have different skills, abilities, and characteristics
last dollar, expecting that people will pay you in time for you to
cover your expenses. Hire people who share your background and ambitions.
Hire a friend’s friend or hire solely on the recommendation of another
is how to form the business — as a sole proprietorship, a partnership,
a corporation, or a limited liability company. This book sets for
the advantages and disadvantages for each. For a partnership, for
instance, the advantages include
Ease of formation;
Low start-up costs;
Additional sources of venture capital;
Broader management; and
Limited outside regulation;
Unlimited personal liability;
Lack of continuity;
Difficulty in raising more capital;
Difficulty in finding suitable partners;
to cover some of these points:
to do business, and with this information the state is certainly an
easier place to be an entrepreneur.
Corrections or additions?
This page is published by PrincetonInfo.com
— the web site for U.S. 1 Newspaper in Princeton, New Jersey.