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Worker asked to testify after colleagues' scuffle seeks reimbursement

She wants to know who has to pay for her day of lost income and commuting expenses if she has to take the stand in a wrongful-termination case against her employer.  

Worker who sided with slugger in office fisticuffs

Worker who sided with slugger in office fisticuffs asked to testify Photo Credit: Getty Images/iStockphoto/DjelicS

DEAR CARRIE: My colleagues and I work as pharmaceutical sales representatives on Long Island.

We went to an out-of-state sales meeting and later attended a football game. After the game two of my colleagues got into a scuffle. The colleague who threw the first punch was fired and has filed a wrongful-termination lawsuit. His lawyer has asked me to testify for his client because I believe my dismissed colleague was provoked into a fight. The problem is that I will have to take the day off and I will incur traveling expenses because the trial will be in New Jersey, where the company is based. And I am not sure I will be reimbursed. My colleague who is suing said the company should reimburse me. That doesn’t seem right. Who should pay for my expenses and my lost day of income?   — Caught in Middle

DEAR CAUGHT: You were right to suspect that your employer isn't on the hook for your court-related expenses in this instance.   

"No one is obligated to reimburse the reader for her expenses and lost income," said employment attorney Richard Kass, a partner at Bond, Schoeneck & King in Manhattan. "If the employer provides employees with personal days or vacation days, then a court appearance might qualify."  

He suggests that you tread carefully here, however.

"Most employers do not appreciate employees who take time off from work in order to testify against them in court," Kass said. 

Regarding that last comment, here is what he suggests you do:

"The reader may want to ask his former colleague’s lawyer to serve her with a subpoena requiring her attendance in court. That way, the reader can perhaps convince the employer that she has been forced to testify against her will."  

Before you get too worked up about the price tag for a court date, bear in mind that a trial may never happen, Kass said.

"My guess is that the trial or deposition will never take place," he said. "New York does not recognize cases for wrongful termination absent some sort of unlawful discrimination (e.g., race, sex, age, ethnicity, etc.). So there is a very good chance that the case will be dismissed without a trial."

And he added, "When two employees start slugging each other, their employer is allowed to fire either or both of them."

DEAR CARRIE: I am a per diem employee at a hospital. I do not accrue vacation, sick days or pension benefits. But in each of the past five years, I have averaged more than 1,300 paid hours of service each year. That is a higher number than most of the part-timers who do accrue benefits. When I mentioned this to an attorney, he said that the IRS definition of a "service year" is any year that an employee works 1,000 hours or more. He suggested that I probably should be entitled to benefits. Am I eligible? — Beneficial query

DEAR BENEFICIAL: That 1,000-hour IRS rule is used to determine whether a worker is eligible to participate in such things as pension plans, and also to determine when the participants become vested. So you are right to wonder why you have not been able to participate, given the number of hours you average per year. That is something you will need to talk to your employer about or call the IRS at 800-829-1040. As for vacation and sick days, often those are not offered to part-time employees. If you have averaged 1,300 hours a year, that works out to 25 hours a week, a number generally considered part-time. But again, if others who work fewer hours than you receive those benefits, you need to talk to your employer about the discrepancy. 

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