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Jerry Reiss ASA**

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Benefit Disputes
Discrimination at Work
Discrimination under Federal Law
 
The federal law allows you to sue your employer if you lost your job on account of discrimation or otherwise were victimized by it while at work, or if you were refused employment opportunity on account of it.  This enabling law has so much more teeth than your ability to sue for promised benefits under ERISA.  That is because you can sue for all damages and can sue for attorney's fees if you are successful.   In the more egregious cases you can be awarded punative damages and this can be huge.  But before you can sue you must file a claim with the Equal Employment Opportunity Commission "EEOC" and you have a very short amount of time to do it.  If you fail to timely file you will not be able to proceed.  You can only proceed after the EEOC releases your claim and failed to rectify your problem.
 
The areas of discrimination that you can sue for are widespread.  The first is covered by Title VII of the US Code and covers discimination because of race, religion, creed, national origin, or sex.  The second is on the basis of advanced age and is covered in the Age Discrimination Employment Act "ADEA".  The third is covered under the Americans with Disabilities Act  "ADA".  While this act applies to employment it also applies outside employment.  A Fourth was created under the Clinton administration, the Family Medical Leave Act "FMLA". 
 
To recap covered areas include:
 
                         Title VII Discrimination
                         Age Employment Discrimination Act
                         Americans with Disabilities Act
                         Family Medical Leave Act
 
Mr. Reiss can help your case as an expert witness by strengthening it if it is tried, but also by likely improving the offer made to settle the case.  He has testified in both state and federal court on the subject matter.  Where he can offer testimony depends on where you can sue and where your attorney decides to sue. 
 
An actuary can serve you best with identifying your loses.  That is because some of this loss is actuarially-based, referred to as "reputational damages".  Once you file in court against your employer you are labelled a troublemaker even after you prove the merits of your case.   If it is as a result of the firing you also have a hole in your resume.     So much of the loss is related to employee benefits and all other forms of compensation.  The actuarial component of damages involves how the reputational component sustained by suing your employer limits future opportunities; and how this relates to the federal definition of recovery - to return you to the same state that existed before the injury where you could still lose your job for lawful reasons (if the damage was the result of a firing).  Thus irrespective whether the court orders reinstatement of emloyment in lieu of front damages or you find other work, the replacement or reinstated job could be terminated for legal market reasons.   The injury shows its ugly face when you seek new work at that later time.     As this particular form of damages is not considered front or back pay and is limited by a $150,000 cap, it is not subject to the rule that limits front pay damages to three years. 
 
You need a pension actuary to calculate all of the lost employee benefits.  When you can establish that the employer historically awarded stock options on annual or biannual basis  you might be able to show the court that all of the options are awarded as back pay even though the employee might be required to work future years to fully vest the options.  The argument gains strength when the options fully vest on death or disability or when they vest on a change of control of corporate ownership.  When one or more of these factors are present vesting has little to do with allocating what was earned but instead serves as a penalty for terminating employment in the same way that other employee benefits work.  We certainly would not exclude  earned retirement benefits that vest in the future because that work effort is incidental to what has already been earned.  Besides the future work effort brings with it future award of stock options.  When the same conditions that vest an unvested retirement benefit vest an unvested stock option the entire award when made is considered fully earned.  
 
The point is that when these circumstances exist, not only are all options awarded part of back pay damages, but the historical awarding of options has a front pay damage component  to it that includes all options awarded in the three front years irrespective whether they vest outside the three-year period.  Only a highly skilled benefits expert who worked in the design of such programs knows what to look for and how to find it so that it can serve as a theory of damages before the court.   
 
Retirement benefits and vacation pay can have a seniority-based portion also and it usually requires a skilled benefits person to be able to recognize and calculate it.  This seniority-based portion can be more than half the value; and even though it is fully earned in the future, it is permanently lost on the date you were fired (classifying it as back pay damages).  This conclusion results because when new work is found with identical pay and identical benefits these extra benefits require the service with the prior employer and therefore will never be paid.