“Others were paid for not using health insurance; not me. Any rights?”

Question:  Hi, Alan,

My wife chooses not to receive health insurance from her employer. Her employer has paid $1,000 per quarter to other employees at her level who don’t take the health insurance. She hasn’t taken the health insurance for eight years, and has not received any money for not doing so.

Now she has asked why, and they’ve now offered her $750 per quarter going forward. Do they owe her for the past eight years? Should she seek $1,000 per quarter, just like the other employees?

Mineola, New York

Answer: Dear Chip: Two good questions. As I will explain below, the answers are (1) “Possibly,” and “Probably.”

1. No one “owes” anyone anything unless there was first some sort of (a) “broken promise” or (b) “broken law.” Obligations to pay something, or debts for not paying something, must arise out of some promise or legal requirement. Do you owe your next door neighbor $100? Only if (a) you promised to pay her $100 if she gave you a lamp, and she gave you the lamp, or (b) your dog dug up $100 of her tulips because you negligently let him loose.

There are many kinds of promises, including (a) express ones, such as things said or written, and (b) circumstantial promises. A good example of an implied promise that arises from “circumstances,” would be when you order a hamburger in a restaurant: the law says that, even if you don’t expressly “promise” to pay for it, by ordering it, and eating it, you have – by the very circumstances – impliedly “promised” to pay for it.

And, as explained below, “broken laws” also give rise to “debts” and “obligations.”

2. An employer might have “promised” an employee payment for not taking health insurance, if (a) its representatives said so in a contract, (b) its representatives somehow expressed that all employees were entitled to that payment in an Employee Handbook, or perhaps (c) its Human Resources policies say, one way or the other “We promise to treat everyone equally.” There are many ways employers can “promise” things to employees, including in contracts, in handbooks, in benefit-package descriptions, even in conversations. However, there must have been some kind of “promise” in order for there to be some sort of “owing.”  

3. If not by a “broken promise,” an obligation to pay monies may also arise from a “broken law.” Most commonly, the law prohibits “unequal” or “disparate” treatment of employees if the different treatment was based on (a) age discrimination, (b) race discrimination, or (c) some kind of improper or illegal motivation. This is the kind of “legal requirement” I mentioned above. It is illegal to treat employees differently based on an “illegal” motivation, such as because they are pregnant, or they practice a certain religion, which is commonly called “discrimination.”  It is also illegal to deny someone benefits because they will not do illegal or immoral things, commonly called “extortion.” And, too, it is also illegal to deny people benefits or monies in retaliation for reporting wrongdoing, commonly called “retaliation.”

4. If your wife knows of either (a) a “broken promise,” or (b) a “broken law,” either of which led to the non-payment to her, she surely has a basis for asking for the eight years of payments. Your note to me does not mention either a broken promise or a broken law. It is your wife’s first step to think long and hard about these two questions, and see if either took place. When clients come to me, I ask them many questions, often for over an hour, each question designed to elicit answers from which I then determine the presence of such facts, events and circumstances that give rise to legal claims. You and your wife need to do this for yourselves, or with the assistance of an experienced employment attorney.

Please note that in New York State law, and by most states’ laws, a legal claim for “broken promise” exists for only six years; this is the “statute of limitations” for a “breach of contract.” In addition, the statute of limitations in New York State for legal claims based on illegal discrimination is three years. Statutes of limitation vary from state to state.

5. If your wife believes a legal claim exists, I suggest a respectful request be made to Human Resources or her Manager for the monies she should have been paid. So long as it is done with delicacy and diplomacy, I suggest your wife make a respectful request for the monies she should have been paid. No threats, no anger, just a respectful request, preferably in writing. If your wife is an “at will” employee, she must bear in mind that, since both employer and employee are free to end their employment relation at any time, she should be diplomatic in her request.

Wages, commissions, or other monies owed to you by present employer? Your best bet is to make a respectful written request. We offer a Model Letter to show you “What to Say, and How to Say It.”™  To obtain your copy, just [click here.] Delivered by Email – Instantly!

Of course, if she should leave her employment for a different job, or perhaps for retirement, such “diplomacy” is not nearly as important.  In this instance, a more “aggressive” request becomes feasible.

We also offer a Model letter for use by former employees to collect commissions, wages or other monies owed by their former employers. “What to Say, and How to Say It.”™ To obtain a copy you can adapt to your own facts and circumstances, just [click here.] Delivered by Email – Instantly!

 6. Without question, I suggest your wife ask, in her own words, “Is there some good reason I would be paid $750 monthly, and not $1,000 quarterly, for waiving health insurance, as my colleagues are paid?” On this question, I clearly suggest she ask for equal treatment or a reason to be denied equal treatment. There are possible “good” reasons. If her employer advised her it has lowered the amount paid to all employees for waiving health insurance, or if her employer advises she is mistaken, or comes forward with some other “good” reason, she might be denied any more than $750 quarterly. But, so long as a request is made (a) respectfully, (b) reasonable in amount, and (c) with a good rationale, there should be no downside risk to making the request.

Chip, thanks for visiting our blog, and for your good question. I hope this information and insight will be of value to you and your wife. If so, I’d very much appreciate you telling your family, friends, and colleagues about our blogsite.

My Best to You,
Al Sklover 

P.S.: How about a Model Letter to Enhance Your Upcoming Performance Review? Just [click here.] “What to Say, and How to Say It.”™ Delivered by Email – Instantly!

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© 2013 Alan L. Sklover, All Rights Reserved.

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