Employment and Employee Benefits Litigation

The Law Offices of William E. Burkhart, Jr
Serving Clients in New York and Pennsylvania
Frequently Asked Questions

1. Does your law firm represent employees or employers?

We represent both employees and employers on employment and employee benefits law issues. Our employer clients include law firms that have employment law issues with their employees and former employees.

2. Does your law firm litigate cases in more than one state?

Yes. We litigate employment and employee benefits issues in the State of New York and in the Commonwealth of Pennsylvania. We have sued such companies as Xerox Corporation, the Eastman Kodak Company, and Corning, Incorporated, and such insurance companies as Metropolitan Life Insurance Company and First Reliance Standard Life Insurance Company. Litigating employee benefits issues under the Employee Retirement Income Security Act of 1974 ("ERISA") in federal courts. ERISA litigation can often involve law firms from different states. For instance, in one recent litigation, Sunderlin v. First Reliance Std. Life Ins. Co., 235 F. Supp. 2d 222 (W.D.N.Y. 2002), opposing parties were represented by Rawle & Henderson LLP of Philadelphia, Pennsylvania; by Smith, Sovik, Kendrick & Sugnet, P.C. of Syracuse, New York; and by the international law firm Bryan Cave LLP, using its New York City and St. Louis, Missouri offices. In the Commonwealth of Pennsylvania, we represent Dr. Roxanne Gupta in her denial of tenure litigation, which has drawn international attention. Gupta v. Albright College, 2006 U.S. Dist. LEXIS 2126 (E.D. Pa.); HindustanTimes.com.

3. Does your law firm represent claimants in New York State unemployment insurance hearings and appeals?

We have represented a considerable number of claimants, and some employers, at New York State unemployment insurance proceedings. One such case is In re Barrett, [Eastman Kodak Co.], 270 A.D.2d 675, 704 N.Y.S.2d 722 (N.Y.A.D. 3 Dept. 2000), which has been used to interpret New York State Labor Law Section 622 Rules Governing Hearings and Appeals (Consol. 2002). Unfortunately, we currently limit any representation of claimants in New York State unemployment insurance proceedings to either existing clients or those clients who have retained us to represent them in multiple proceedings, including the unemployment insurance issues. As a public service, we furnish a link to the New York State Department of Labor, for information on filing unemployment insurance claims. We do not limit our representation of employers.

4. When should an employee consult an employment attorney?

Since 1990, federal legislation has added considerably to the rights enjoyed by employees in America's workplace. These laws are often difficult for the average attorney to understand. We recommend, strongly, that an employee consult with an employment attorney before his or her job and career are placed in jeopardy. Critical career points include:

· promotion to a supervisory position
· switching employers
· announced downsizing
· illness or injury
· discharge
· retirement
· ERISA plan enrollment

5. When should an employer consult an employment attorney?

We recommend that employers consult an employment attorney at the earliest stage of incorporation, and periodically thereafter. Consultation services and preventative assistance are vital to avoiding expensive and time-consuming litigation. Critical times include:

· employee promotion to a supervisory position
· merger or acquisition
· operations downsizing
· employee illness or injury
· employee discharge
· employee retirement
· ERISA plan initiation, modification, or termination

6. Could I be covered by an ERISA plan?

It is quite possible. Many employees, hourly and salaried, are routinely covered by ERISA plans sponsored by their employers. The employees' spouses or former spouses may be covered as plan beneficiaries. Examples of ERISA plans include coverage for long-term disability, health and dental care, and pension. We recommend that you consult an employment attorney to ascertain what rights you may have under your plan(s).

7. When should an ERISA plan participant or beneficiary consult an employment attorney?

A participant or beneficiary in an ERISA plan should consult an attorney before his or her rights are lost. Here, the reader may wish to review a transcript of a CBS News 60 Minutes segment, "Did Insurer Cheat Disabled Clients?" In one recent case handled by our firm, a participant in a long-term disability (LTD) ERISA plan had become disabled at work in 1986, and received his benefits until he was denied by the insurance company in 1995. He did not appeal the denial, and was sued by the insurer in 2000 for an alleged overpayment and attorneys' fees. Our firm successfully defended him on the federal lawsuit, and forced the insurer to pay attorney's fees. We were unable to reverse the original denial of benefits due to the client's delay in ascertaining his rights. In another case which we declined, a plan beneficiary divorced a participant in a corporate pension plan. Unfortunately, the beneficiary's divorce attorney failed to properly notify the corporate employer to divide and segregate the divorced plan participant's pension assets. When the divorced spouse retired and moved to Florida, she built her new home using the total retirement proceeds to the detriment of her former spouse and plan beneficiary. Conversely, in a third case, the client was referred to our offices within days of being denied her long-term disability benefits. We recovered her past benefits, clarified her right to future benefits, and forced the employer and insurer to pay attorney's fees. We also won a considerable monetary penalty against the employer for ERISA violations

8. I have an attorney who represents me on matters other than employment or employee benefits issues. Isn't that attorney capable of providing sufficient advice and representation about employment and employee benefits law issues?

Probably not. Employment and employee benefits law issues, particularly federal statutes, are complex. Whether you are an employee who has a general practitioner for drafting your will and closing your house, or an employer who has corporate or outside counsel for corporate tax advice, that attorney probably does not have the level of expertise necessary to advise a client on complex employment and employee benefits law issues. We do not seek to replace your present attorney, but to augment that attorney's representation in a vitally important area. We often work closely with attorneys who serve their clients' more generalized needs.

9. Who might you recommend to perform job reference checks and background checks?

Identity theft has become an increasing problem for employees and employers. We recommend that employees check their credit reports and references periodically. Similarly, we advise employers to check the references and backgrounds of their employees. Both employees and employers would benefit from visiting the website of Allison & Taylor, Inc.

10. I am interested in consulting with an employment attorney. What is the next move?

Review the Statement of Client's Rights and the Statement of Client's Responsibilities found on the Ethics page of our website. Then, contact us to discuss scheduling an initial legal consultation by telephone at (585) 325-1750 or by e-mail through the E-Mail page of our website. Leave a brief message -- we often have a paralegal return calls and e-mails. Alternatively, you may contact Paralegal Carol Ann Kustas directly at (585) 377-9774. Directions to our principal office are made easy by MapQuest, available at the Directions page of our website.

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450 Reynolds Arcade Building · 16 East Main Street · Rochester, NY · 585/325-1750