Negotiating a severance package after wrongful termination

Hearing the words, “You’re fired” can be every employee’s worst nightmare. Washington, D.C., employees who are let go from their jobs may find that their emotions run the gamut from anger to sadness to fear. This is especially true when an employee has been wrongfully terminated, that is, laid off for unlawful reasons such as retaliation, sexual harassment or illegal discrimination.

When an employee has been wrongfully terminated, he or she may want to take legal action against his or her employer. However, in some cases it may be possible for employees to negotiate a severance package in lieu of litigation. An attorney can advise individuals in these situations about whether a severance package or litigation makes the most sense in their case.

There are some strategies that can be employed when negotiating a severance package. For example, there is no need to rush into an offer. Take time to keep your emotions in check and think about the offer before agreeing to it. There is no need to take the very first offer you are presented with. Staying on the payroll for as long as you can may be beneficial. In addition, one can ask for the offer to be placed in writing. Moreover, in addition to severance pay, one can negotiate that one’s medical insurance benefits be extended.

Although it is a very stressful situation to be in, employees who have been wrongfully terminated do have options that they may want to discuss with an attorney. With the right help, individuals can determine whether they can pursue a legal claim or negotiate a severance package. There may be other options available to them as well that an attorney can help explain.

What Do I Do If The Office Of Inspector General Wants To Interview Me?

The Office of Inspector General (OIG) is a federal agency that investigates fraud, waste and other alleged misconduct, including job nonperformance, by government employees. If you are under investigaiton by the OIG, or are requested to appear at an OIG interview, it is important to know what is at stake. If the OIG believes you are involved in criminal activity, you could be subject to workplace discipline as well as criminal prosecution by the Justice Department for prosecution.

You have the right to an attorney when meeting with representatives of the OIG. It is critical to exercise this right at the earliest opportunity. At Alan Lescht & Associates, P.C., our law firm has a record of vigorously defending the rights of federal employees facing all types of allegations. We understand the unique nature of federal laws protecting employees, and will use this knowledge to protect you.

How Does An OIG Interview Work?

The OIG cannot force you to answer questions; however, your supervisor can discipline you for refusing to do so. Employees can only refuse to answer questions if their answers could be used against them in criminal proceedings. The lawyer you select can make a dramatic impact in the way this matter is resolved.

If you are under investigation, an attorney can help you comply with the investigation while presenting your case in the best light. Should the OIG recommend employment discipline, we can represent you in a hearing before the Merit Systems Protection Board (MSPB).

Contact Alan Lescht and Associates, P.C.

From our office in Washington D.C., we represent federal employees throughout Maryland, Virginia and beyond. Our lawyers and staff will do everything possible within the law to protect your rights and your employment. Contact Alan Lescht and Associates today if you are under investigation by the OIG.

EEOC: Sexual orientation discrimination is prohibited under Title VII

The EEOC recently ruled that sexual orientation discrimination claims may be brought under Title VII of the Civil Right Act of 1964. The Commission’s recent ruling in Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015), represents another significant victory in the hard-fought battle for the rights of the LGBT community.

The case arose after a man in Florida alleged that his employer, the Federal Aviation Administration (FAA) repeatedly failed to promote him to a frontline manager position because he is an openly gay man. Although the EEOC has not yet issued a decision on the merits of the discrimination claim, the July 10, 2015 decision held that the FAA is required to process Mr. Baldwin’s complaint of discrimination based on his sexual orientation, stating: “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex,” thereby creating an entitlement to protection under Title VII.

This ruling directly impacts federal employees because it applies to all federal agencies. In short, this decision affords federal employees the immediate right to be free from discrimination based on their sexual orientation. Many believe that the next step in LGBT rights will involve federal courts’ similar interpretation of Title VII to include prohibition of sexual orientation discrimination in the private sector but, at present, those waters remain uncharted.

Mr. Baldwin’s case represents a significant step forward for the LGBT community and for federal employees. If you believe that your federal employer has subjected you to discrimination based on your sexual orientation, you should immediately contact a federal employment attorney who will assist you in determining your rights under this changing area of the law.

Source: Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015) pdf

Statistics about sexual harassment and pornography at work

When many Washington, D.C. residents think about sexual harassment, they may not think about sexually explicit materials that may constitute harassment. This could be many things, but generally, sexually explicit materials are photos, or anything similar, — of pornographic nature. These images are not allowed in the workplace. Despite this, some employees do engage in inappropriate online activity during work hours.

When an employee is engaging in inappropriate activity, this behavior could result in another employee feeling sexually harassed. This may happen intentionally, such as when an employee shows another employee pornographic content. Or, it could happen unintentionally. For example, an employee walked by and witnessed another employee viewing pornographic content on his or her computer.

In 2003, individuals with the organization Business and Legal Reports questioned 474 human resource professionals about pornography and sexual harassment. Of the 474 professionals, two-thirds of the group admitted to finding pornography on employees’ computers. Incredibly, more than 40 percent of these human resources personnel discovered the pornography more than once.

This study shows that pornography viewers were likely reprimanded the first time for their Internet activities. However, this did not deter more than 40 percent of them from engaging in the behavior again. In addition, a monthly report from Message Labs in March of 2004 concluded that 70 percent of Internet traffic to pornographic websites took place during daytime work hours. These statistics are troublesome- since it seems that this may lead to an increase in sexual harassment accusations in the workplace.

Some victims of sexual harassment in the workplace may not feel inclined to report the behavior, for fear of retaliation or unfair treatment at work. Victims may want to speak with a sexual harassment lawyer to discuss their options for taking action.

Source: Covenant Eyes, “Pornography Statistics – In the Workplace,” accessed on Jan. 13, 2015

Can a federal employee appeal a forced retirement to the MSPB?

We frequently consult with longtime federal employees who are towards the end of their careers and find themselves dealing with a new and unpleasant supervisor who makes their work life hell.  By the time they get to us the situation at work is bad.  Either the supervisor has issued discipline, rated them unacceptably, or placed them on a PIP.  We are frequently asked if they can claim that they were forced to quit and then pursue a claim against the agency at MSPB.

No MSPB rights unless retirement resulted from intolerable working conditions

MSPB rules hold that in order to state a claim for involuntary retirement, also called a forced removal or constructive discharge, the employee must establish that the retirement was the result of intolerable working conditions.

However, MSPB applies this rule narrowly.  It requires that the employee must show that the agency’s efforts to force the employee out were the result of improper acts by the agency and a forced removal will not be found where an employee retires “because he does not like agency decisions such as a new assignment, a transfer, or other measures that the agency is authorized to adopt, even if those measures make continuation in the job so unpleasant … that he feels he has no realistic option but to leave.”  Conforto v. MSPB, 713 F.3d 1111 (Fed. Cir. 2013).

There are many avenues available to address problems faced by longtime federal employees.  Don’t go it alone or rely on advice you find from the internet.  Contact Alan Lescht and Associates today if you face these issues and we will put our many years of experience to work for you.

What to do if you receive a cease and desist letter from your former employer?

On behalf of Alan Lescht & Associates, P.C. posted in Non-Compete Agreements on Friday, May 9, 2014.

Ten years ago very few people were asked to sign contracts that included non compete, non solicitation and confidentiality provisions. Today, that practice seems commonplace. And in today’s economy, we see people nearly every week who, after leaving a job on their own or by firing, receive a letter from their former employer threatening a lawsuit and/or demanding that the person either inform the new employer about the restrictive covenants, quit or stop working in their chosen field.

What to do if you get a letter like this?

First, take a deep breath. It is not the end of the world. Many restrictive covenants are written in such a way that they are so overly broad or unreasonable that they are not enforceable. Courts do not want you unemployed and so will take a very hard look at these agreements before putting you out of a job.

Second, look through your files and locate a copy of the agreement you signed. If you can’t find it, then politely ask your former employer to provide a copy of it to you.

Lastly, contact a lawyer who, like us, handles this type of work BEFORE you respond to your former employer or tell your current employer about the situation. I say this because it is important that you know whether there is any validity to the allegations made in the cease and desist letter and what your potential recourse is before you begin to tell other people about it or respond to the allegations.

The employment lawyers at Alan Lescht and Associates, P.C., provide advice and representation in matters involving non compete, non solicitation and confidentiality.

MSPB rights of federal employees who retire in lieu of removal

Federal employees can only appeal to the Merit Systems Protection Board (MSPB) in certain situations. Federal employees who are removed from their jobs generally may seek reinstatement and back pay at the MSPB. However, we occasionally encounter people who decide to retire rather than challenge a proposed removal and are asked what impact retirement will have on them. The answer is that federal employees who elect to retire may still pursue their case at MSPB but their decision to retire before removal will cause MSPB to issue a show cause order requiring them to establish jurisdiction. Because MSPB jurisdiction extends only to removal cases where the removal was involuntary, federal employees who retire in lieu of removal will need to establish that they were constructively discharged — forced to quit — in order to continue with their case. This is not an easy burden to uphold.

If you are facing removal or considering retirement, contact Alan Lescht and Associates today. Ask for advice and counsel before making critical decisions about your employment.

Exploitation of undocumented workers: They still have legal rights

A recent article in The Tennessean looked at the issue of employers’ failure to pay undocumented workers. The article highlighted the protections available to such workers when their employers exploit them.

According to a 2004 study by the Urban Institute, undocumented workers made up about 5 percent of the U.S. workforce. Although it is illegal for employers to hire undocumented workers, they are bound by the Fair Labor Standards Act to provide minimum wages, overtime pay, and other protections once they do. Further, there is no legal residency requirement to file a complaint in American courts, which means that even illegal workers can file complaints against employers failing to comply with the Fair Labor Standards Act.

The Worker’s Dignity Project-a Nashville-based nonprofit-seeks to educate immigrant workers of their rights and assist them in securing those protections.

Many immigrant workers, both legal and illegal, report that some employers neglect to pay them properly for their work and then threaten deportation if they complain. Complaints filed in the U.S. District Court for the Middle District of Tennessee showed a variety of claims, from accusations of failure to pay overtime wages to painters, to exploiting Mexican migrant workers through federal guest worker programs.

According to a Nashville attorney who represents such workers, employers sometimes threaten to call police or immigration authorities and then continue to work immigrants without paying them. Because of the situation of such workers, it is easy for employers to fail to pay full wages and come up with excuses.

Some advocates say the problem is more widespread than is readily visible, since many undocumented workers do not come forward.

According to an Immigration and Customs Enforcement spokesman, the primary focus of the agency is not to find and deport illegal workers, but to prevent employers from knowingly hiring, exploiting and trafficking illegal workers.

Programs similar to the Workers’ Dignity Project exist in other cities, such as Austin, Texas and Long Island, New York.

Advocates for immigrant workers say that such exploitation is not only contrary to basic human rights, but that it also depresses wages, benefits and working conditions for all workers.

Source: The Tennessean, “Immigrants turn to courts when wages aren’t paid: legal, illegal workers are protected from threats, exploitation,” Brandon Gee, 25 Jan 2011.

Non-compete prevents CVS from hiring former Wal-Mart VP

Most are familiar with Wal-Mart’s success as a company, and its uncanny ability to drive smaller competing businesses into the ground. But people are not necessarily aware of the legal battles Wal-Mart engages in to protect its marketing strategy.

On December 15th, Wal-Mart won a court order preventing CVS Caremark Corp. from hiring the man who formerly served as Wal-Mart’s executive vice president. Wal-Mart claims that its former VP is bound by a non-compete agreement.

Wal-Mart hired its former executive VP in 2006 and formed a non-compete agreement with him in 2009 upon appointing him president of Northern U.S. division of Wal-Mart. The agreement prevents the former VP from working for competitors retailing more than $5 billion in revenue for two years after leaving Wal-Mart.

The agreement was reportedly made to prevent the former VP from disseminating confidential information concerning Wal-Mart’s pilot program involving small-format markets. The former VP had been the executive sponsor of Wal-Mart’s small-format plan, and had oversight of 1,312 stores in 19 states during his time with the company.

In a hearing concerning the contract dispute, CVS argued that Wal-Mart brought the former VP on because of his expertise in management rather than for his knowledge about Wal-Mart growth strategy, and that any knowledge he may have is outdated. But the judge ruled that the non-compete agreement was reasonable. Wal-Mart’s request was granted as a preliminary injunction, which will prevent CVS from making the hire until the issue is tried in early March.

In the area of pharmacy retail, Wal-Mart has established itself as a competitor with companies like CVS, Walgreens, and Supervalu. The company currently has over 4,000 pharmacies.

Wal-Mart announced its plans last October to open 30 to 40 small-format markets in 2012. Its small-format strategy will place it in direct competition with companies CVS.

Source: Bloomberg, “CVS Can’t Hire Ex-Wal-Mart Vice President, Judge Says,” Sophia Pearson; Phil Milford, 15 Dec 2010.

Contact Alan Lescht and Associates today if you need legal advice about a non-compete agreement. We can review your contract and try to negotiate more favorable terms for you.