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Employer put stop payment on severance check

Discussion in 'Small Claims & Municipal Court' started by slar44, May 9, 2009.

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  1. cbg

    cbg Super Moderator

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    Twisting my words is such a habit with you, you don't even realize you're doing it. I specifically said you did NOT say severance was required by law and then you come back asking me to show where you DID say it. If that's not word twisting I don't know what is.

    I didn't realize you were now claiming to be an expert on what lawyers think. You most certainly are not an expert on what I think since you get it wrong most of the time. At NO time did I say there was no contract. What I said was that writing a check does not a contract make. There may well be a contract. But it's NOT writing a check that makes it so.

    We don't know what the "oral agreement" was between the employer and the employee. We don't know what the employer's reason for stopping payment. We don't know what the policy on the payout of vacation was, which matters in New York. All we know is that the employee claims to have had an agreement for severance and nothing more. If you're prepared to take that at face value and assume that means a contract exists and what the contract says, I'm not. Even if that's enough to make a contract, and I'm not saying it isn't, we have no way of knowing what the contract is for. But then you always did like to assume facts not in evidence.
     
  2. FlaRiptide

    FlaRiptide New Member

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    A check is a negotiable instrument. A negotiable instrument is not a contract, as contract formation requires an offer, acceptance, and consideration. Thus the employer had every right to stop payment of the check.

    If anything the employee may argue that he had a verbal contract to receive the severance pay. Perhaps the stopped check could be used to "prove" that a verbal agreement was reached, yet revoked.

    Ahhh!! I had to add my two cents worth. I feel better :)
     
  3. cbg

    cbg Super Moderator

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    FlaRiptide has it. I'm surprised at you, GH. This is the sort of thing you'd usually catch in a flash, but you were so determined to prove me wrong, you got off on a tangent.

    If a contractual agreement exists, and I am not saying it does not, then it exists regardless of whether he wrote a check or not. If the proof is the check, which is what you keep insisting, then if he HADN'T written the check, the employer would have no obligation to make payment, regardless of any agreement. It is not the writing of the check that makes the contract, BUT THE AGREEMENT BETWEEN THE EMPLOYER AND EMPLOYEE.

    We do not know the terms of the agreement, therefore we cannot say FOR CERTAIN that a contract exists. It very well may. But if a contract exists, then it exists regardless of whether a check was written or not. A check is not a contract.
     
  4. Green_Hornet

    Green_Hornet New Member

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    You are beginning to sound ridiculous its not about proving you wrong. Your wrong because your wrong. The check was cut that is the same as cash changing hands. You cant revoke a contract once performance is carried out. Employers don't hand out cash for no reason at all, so what are the terms of the check that was written? Are you saying employer is going to lie under oath, or is slar44 lying? They the only two choices here.

    FlaRiptide has nothing other than the employer revoked payment after performance, sorry thats not legal. Which is what I have been explaining to you.

    A bounced check is proof a contract existed otherwise it would not have been drafted. The fact that it bounced raises questions for the court. If slar44 cashed the check before a stop payment was placed on it, could the employer sue her to recover the severance and win in court? No way!

    You keep arguing with me what should slar44 do about the severance pay check that was cancelled?
     
    Last edited: May 12, 2009
  5. Green_Hornet

    Green_Hornet New Member

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    Wrong a check is a written order directing a bank to pay money. Once a check is written negotiations are final.

    Bingo! I don't know what cbg is talking about, your agreeing with me(although reluctantly) in this paragraph. Now apply your signature Though I may not practice the Law, I do practice Common Sense now what does common sense tell you?

    Is it common sense for the employer to write checks for absolutely no reason?
     
    Last edited: May 12, 2009
  6. Green_Hornet

    Green_Hornet New Member

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    Wow wow take it easy tootsie what am I twisting here? I'll edit the question out if your featherers or that ruffeled. Lets review what you wrote:
    Well they are not that different and that was pointed out by Dee Dub and myself.

    This is the thrust of your argument in bold. Which you later modify as you go forward dropping the bold.

    The details are laid out in the original post. Its obvious the employer wrote a check and canceled it.

    Which I explained to you why thats wrong. I feel 99% certain only 1 person out of 1,000 would need more convincing there was a contract. You also once again bring up "severance is not required by law" everyone gets that its not in dispute so why keep bring it up unless you think its a point that is very important or a defense in an action. Do you belive it is a defense or not? If not stop bring it up every other post, then complain your words are being twisted, and thats not what you mean.
    Once again I explained why that is incorrect. Tell me why did the employer write the check if you don't want to take the posters word for it? Or do you take the posters word for it? I don't want to be accused of "twisting your words" what ever that is.

    Of course that is precisely what a judge will determine. The canceled check is very powerful evidence in favor of the employee. The judge is going to want to know what the terms of the check are, and why the check was canceled? The poster claims it is severance pay. Since the employer wrote and later canceled payment on the check the employer has to prove otherwise. If the employer agreed to severance in an oral contract the employee would have a much tougher hurdle to climb with out the bounced check. The employer wrote the check for severance, that is what the poster has said. So what is all this word twisting your accusing me of and where am I introducing facts not in evidence?
     
    Last edited: May 13, 2009
  7. dee_dub

    dee_dub Moderator

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    I don't know anything about the specifics of the agreement pursuant to which the cheque was drawn, or indeed whether there was an agreement. And the OP is (wisely, I might say) probably long gone from this thread. But I DO know that you can't just blithely stop payment on a cheque.

    Correct: A cheque is not a contract. This does not mean that the employer had every right to stop payment on it. Anyone can cancel a cheque. For any reason. The important question is, what then?

    The answer is, a cheque is a promise to pay; cancelling it is reneging on the promise; and the courts WILL enforce the promise if the payee sues on it, absent very good reason not to.

    Is there a good reason not to? Beats me. But I would speculate that "it was a severance payment that was not required by law" is NOT a good reason. The essence of any agreement is that it is consensual, not mandatory; courts enforce them anyways. No one is required by law to buy a house either. But if you bounce a cheque to the seller, you can bet they could successfully sue you for it. The payee suing to enforce a cheque doesn't bear the burden of proving they were owed the money; the drawer of the cheque trying to renege bears the burden of showing why they should be allowed to escape their obligation.
     
  8. Green_Hornet

    Green_Hornet New Member

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    A check is not a contract but certainly strong evidence that one exists. People don’t cut checks then cancel payment on them for the fun of it. In fact I have been writing checks a very long time and only cancelled payment on a check one time, when the check did not get to the intended recipient in the mail. I canceled it because I felt it was lost or stolen cost me 35 bucks to cancel it if I remember right.

    The fact is the poster has a strong case worth perusing in court nothing changes that, she has the bounced check the question is, why the employer welched on payment after he cut the check? The poster claims it was for severance and I believe she telling the truth, if not she will have problems in court.
     
  9. FlaRiptide

    FlaRiptide New Member

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    Question for dee_dub

    For taxes severance pay will be viewed as payment for past services rendered (wages). But since severance pay is not mandatory by FLSA, can it not legally be construed as a gift? And if so, can a gift be withdrawn even though it was verbally promised? Is a gift lacking of consideration and thus not a contract?

    I'm not versed in this legally, thus I am speculating... :)

    Ah ha, I re-read a post earlier by Green Hornet. I assume that though a promised gift may be legally revoked, a gift that has been "performed" by means of the check may not be legally revoked.
     
    Last edited: May 13, 2009
  10. slar44

    slar44 Law Topic Starter New Member

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    I went to the Small Claims hearing last night, and the judge sent us to the mediator as an initial step. My former employer horrified the mediator with an over-the-top argument about how I was a bad employee, trying to say that after he paid the severance, he discovered unfinished tasks and "disarray". He had no legal basis and ended up looking pretty bad, so I feel confident that with the information you all have given me (and probably even without it), I will win the trial in 2 weeks. My plan is to put his defamation in check a little bit (not too hard, since he is saying I was the "employee from hell", yet granted me 3 raises in 2 years and offered me this package in order to get me to commute 5 hours round trip to the new location to train my replacement), but I also want to make the more relevant point that there was no "good faith dispute" of the terms of the severance agreement after the fact that would in any way justify his stop payment. Since he did not respond to any of my communications after this happened, the only apparent reason for it was that he became angry about having to pay me for vacation (a separate matter being taken up by the labor dept). This constitutes a unilateral renegotiation of the terms of a contract, yes?

    I have taken down a lot of what has been written here, and will bring the statutes you posted, Green Hornet. Any other suggestions for how I should frame it, or specific laws I can go in with?

    Thank you so much, your discussions have been very helpful to me.
     
  11. Green_Hornet

    Green_Hornet New Member

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    The employer admitted he cut a check for severance pay. His argument is you left unfinished work that justified canceling the check. At least the employer told the truth about the check being for severance. Was the unfinished work he is claiming part of the terms of the severance agreement? I imagine the judge will judge will ask that. There is a "good faith" dispute since he is not paying you severance according to the terms agreed, the employer is not acting in good faith by canceling payment agreed to by both party's (you & the employer). His argument appears to be you did not live up to the terms, and did not perform as agreed by leaving unfinished work.

    The employer has to back up his argument by showing unfinished work that was agreed to be done under the terms of the severance check. He also has to show you that prior to the trial when the judge will tell the party's to show each other documents supporting their positions.

    The judge will probe into the terms of the agreement then make a decision.
    My advice would be to write down everything you can remember about the conversation regarding the severance pay. Always keep in mind Who, What, When, Where, Why as you write it down, because that is what the judge will be asking. For example: I met with my boss. Period. When, Why, Where? We discussed severance pay. Period. Why? He agreed to give me $xxx .Period. What for, Why would he do that? We both agreed. Period. Under what terms?

    Don’t waste a whole lot of time with the employees past performance was poor argument your boss will make, because the employer will be getting probed as well. The employee had bad past performance. Period. Why offer severance pay if she was as bad as you claim, why not fire her? By all means bring any paper work that disputes that claim since it would make the employer look less credible. However the thrust of your case is simple: (1) we agreed (2) I performed (3) the boss welched. Keep those three basic points in mind, as you write out you recollection of the events. As you recall the events see if the bosses position has any merit. The more you write the clearer things become. As difficult as it is try to write objectively, so as to find out what really happened.

    You see where this is going the judge is mostly interested in the terms and performance of the contract in dispute. Your boss is arguing you did not live up to the terms therefore did not perform under the terms agreed to. If the boss can prove this to be true the judge will find in his favor If not the judgment will be in your favor. If you win your employer is entitled to an appeal in district court.
    One other thing courts require proof (evidence) the employer is at a disadvantage like Dee Dub said since he wrote the check and canceled payment. He has show a good reason for canceling payment.
     
    Last edited: May 13, 2009
  12. Green_Hornet

    Green_Hornet New Member

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    Oh one other thing if the employer is claiming work is required for severance that could give rise to a wage issue since work required for pay is not severance that would be a wage. If that happens the NY state citations § 197 § 198 may come into play.
     
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  13. Green_Hornet

    Green_Hornet New Member

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    Your welcome lets us know how it works out.
     
  14. slar44

    slar44 Law Topic Starter New Member

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    Ok, I will. The trial is in 2 weeks.
     
  15. slar44

    slar44 Law Topic Starter New Member

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    So I went to trial, and got the judge's decision today. My former employer didn't make much of a case -- he believed that since severance pay is at the discretion of the employer, he had the right to take it back, and the reason he gave was that he was dissatisfied with my performance. When I said that there were no conditions related to performance placed on the severance pay agreement, he scoffed and said, "How could it not be related to performance??" It didn't help his case that he gave me several raises over the course of my employment and paid me an extra 20% of my wage to train my replacement, yet claims to have been very disappointed with my work.

    So the decision says that even if he was not satisfied with my performance, "the Court finds this explanation unavailing. The promise to pay the severance was without any conditions." If he was dissatisfied with my work over the course of my employment, he would have factored that into the severance agreement, and if he was dissatisfied with my work in the transition period, he would have known that at the time he wrote the check. The decision was in my favor "in all respects".

    The discussion on this forum was very helpful to me. Thank you!
     
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  16. Green_Hornet

    Green_Hornet New Member

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    Hey thats great news! It takes guts to stick up for your rights at work,and you never know the outcome until a judgment is handed down. Glad this forum helped I'm sure the professor will be pleased to here it.

    Is the employer going to appeal?
     
    Last edited: Jun 5, 2009
  17. Green_Hornet

    Green_Hornet New Member

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    Thank the Professor for running a good site.

    There are sites that sadly let the moderator run rough shot on posters with views contrary to their own. Sites giving the moderators carte blanche to lock the threads or even worse banning those with a dissenting view are of no value.

    They produce a chilling effect on those posting a contrary view, and gives rise to cronyism by presenting an unfriendly intimidating message to any new poster that does not share the view of the pack that is “built by the moderator for the moderator” and with no regard for the aggrieved poster or the contrary view. These sham sites typically are hostile to union members, and plaintiffs counsel only makes it worse.

    When a post is met with common sense, facts of law and a moderators can just lock, delete, edit, and even ban a member on these sham employment law sites, then there is little participation by union members or employment attorneys, because they are mediocre sites that cater to moderators views and not law. The moderator built pack do not merely disagree they disrespect new members with opposing views and use every nasty trick in the book to get rid of them one of the preferred techniques is rat packing.

    However this site is not down with that Bourgeois form of censorship by moderators. Once that yoke of censorship, and fear is removed and posters can express their legal points freely, it results in satisfactory outcomes for the poster with an issue. Since the full legal spectrum is explored, and hashed out instead of being edited, removed, and banned.

    This is not what happened in your case, and I am glad it did not, I am also glad that this site operates on the level not like some of the competing sham sites. Sadly the sham sites actually get more hits. You won’t find the Hornet posting on sham sites run by crooked moderators engaged in cronyism, when the only thing the owner of the site cares about is their placement on the search engine to sell a product or get advertising revenue, the bulletin board accuracy is little more than a secondary concern, it is little more than glorified spam that is passing for sound advice. So beware of these sham sites thousands of causes of action are not perused because of sham site moderators and their lackeys.

    ALWAYS POST ON THE LAW.COM.
     
    Last edited: Jun 6, 2009
  18. jacksgal

    jacksgal Super Moderator

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    Is it possible for you guys to play nice!?:mad:
     
  19. Green_Hornet

    Green_Hornet New Member

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    Who is not playing nice? I am congratulating the poster on a win in court action that I encouraged her to follow through on. Then championed this site. Whats going on here? The posts are weeks apart things got heated in the middle but in the end the poster came out on top, and justice was served. I was proud to be a part of it.
     
  20. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Great thread everyone (other than the bickering, lol) and GREAT thoughts - and WE CAN PLAY NICE!!! In fact, we have to be because there will always be times when we are right and wrong - and a winner without grace falls hard!

    Here's what I think, irrespective of the decision. It's a breach of an oral agreement. Severance is not required but, if given, it's for an agreed upon exchange. In most cases the severance payment reflects an agreement not to sue the company or to forbear from other actions, e.g. disparagement, etc. Once the employer has signed a check and agreed to severance, it doesn't matter how much or how little was agreed to - it's an agreement to sever the agreement amicably with agreed upon terms.

    Why was your employer angry? Perhaps the vacation pay he thought should be included because he was not obligated to give it to you - that is surely debatable - but he didn't raise it in court. Instead, he gave some flimsy after the fact explanation that no judge will buy. It's not credible. Once that happens, the judge will stop listening and award you the money if you have made a "prima facie" case or a case which contains all of the elements to prove your case as necessary under the law.
     

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