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April 17, 2014

Employment -Ninth Circuit Rules That Plaintiff's Claim Of Interference With FMLA Rights Fails, Since She Declined FMLA Leave

In Escriba v. Foster Poultry Farms, Inc., Nos. 11-17608, 12-15320 (9th Cir. 2014), the plaintiff, Maria Escriba ("Escriba"), had worked in the Foster Poultry Farms, Inc. ("Foster Farms") processing plant in Turlock, California for 18 years. She was terminated in 2007 for failing to comply with the company's "three day no-show, no-call rule" after the end of a previously approved period of leave, which she took to care for her ailing father in Guatemala. Escriba subsequently filed suit under the Family and Medical Leave Act (the "FMLA") and its California equivalent. She claimed that her termination was an unlawful interference with her FMLA right. The district court denied Escriba's motion for summary judgment on the interference claim.The jury at the district court found in favor of Foster Farms on this claim, and Escriba appeals.

In analyzing the case, the Ninth Circuit Court of Appeal (the "Court") indicated that an employee can affirmatively decline to use FMLA leave, even if the underlying reasons for seeking the leave would have invoked FMLA protection, and such decline would cause a claim of interference with FMLA rights to fail. The Court said, as to the district court's denial of the summary judgment request, that whether the district court erred in entertaining Foster Farms's contention that Escriba did not intend to take FMLA leave is the dispositive issue in this case. The Court found that the district court did not err in denying Escriba's motion for summary judgment on the basis that Foster Farms's cited evidence demonstrates that Escriba was given the option and prompted to exercise her right to take FMLA leave, but that she unequivocally refused to exercise that right, the refusal voiding the interference claim.

The Court further found that substantial evidence supports the jury's verdict, so the verdict-based on a finding that Escriba declined FMLA leave- must be upheld. As such, since Escriba declined FMLA leave, the Court affirmed the holdings from the district court that Escriba's interference claim fails.

April 14, 2014

Employment-Eleventh Circuit Rules That Plaintiff Waived Her Rights Under The FMLA By Signing A Severance Agreement, Despite DOL Proscription Against Prospective FMLA Waivers

In Paylor v. Hartford Fire Insurance Company, No. 13-12696 (11th Cir. 2014), the plaintiff, Blanche Paylor ("Paylor"), appeals the district court's grant of summary judgment for her former employer, Hartford Fire Insurance Company ("Hartford"), on her claims of interference and retaliation under the Family Medical Leave Act of 1993 (the "FMLA"). In this case, although Paylor signed a Severance Agreement with Hartford ostensibly waiving her FMLA claims, she argues that those claims were "prospective" and therefore not waivable under Department of Labor ("DOL") regulations. See 29 C.F.R. § 825.220(d) (2009). In the alternative, Paylor argues that her signing of the Severance Agreement was not knowing and voluntary, and that the Severance Agreement is void as contrary to public policy.

In analyzing the case, the Eleventh Circuit Court of Appeals (the "Court") said that the only issue is the validity of the Severance Agreement that Paylor signed, since if the agreement is valid, then Paylor waived her FMLA rights. Paylor's principal argument for invalidity is that the district court erred in concluding that she waived her FMLA claims when she signed the Severance Agreement. Paylor says this waiver cannot be enforceable against her because the FMLA does not permit employees to waive "prospective rights" without Department of Labor ("DOL") or court approval, and her rights in this case were "prospective" in the sense that she had--at the time she signed the agreement--an outstanding request for FMLA leave.

The Court noted a DOL regulation, which says "Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA." 29 C.F.R. § 825.220(d) (2009). According to the Court, it is well-settled that an employee may not waive "prospective" rights under the FMLA, but an employee can release FMLA claims that concern past employer behavior. But what are "prospective rights"? The Court said that such rights, under the FMLA, are those allowing an employee to invoke FMLA protections at some unspecified time in the future, so that an employee may not waive FMLA rights, in advance, for violations of the statute that have yet to occur. The Severance Agreement Paylor signed did not ask her to assent to a general exception to the FMLA, but rather to a release of the specific claims she might have based on past interference or retaliation. Hence, Paylor did not waive prospective rights.

The Court disposed of Paylor's remaining arguments based on a review of the record, finding she voluntarily signed the Severance Agreement based on a totality of the circumstances, and that the public policy argument was not presented to the district court and therefore cannot be addressed on appeal. As such, the Court concluded that the Severance Agreement-and the waiver of the FMLA rights- is valid, and the Court affirmed the district court's summary judgment in favor of Hartford.

February 10, 2014

Employment-Seventh Circuit Rules That An Employee Is Entitled to FMLA Leave To Care For A Parent, Even When The Parent Traveled To Las Vegas

In Ballard v. Chicago Park District, No. 13‐1445 (7th Cir. 2014), the Court faced the question of what the term "caring for" a family member means for purposes of the Family and Medical Leave Act (the "FMLA"). The FMLA gives eligible employees a right to twelve workweeks of leave for, among other things, to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

In this case, a question arose as to whether FMLA leave is available to allow an employee to provide physical and psychological care to a terminally ill parent while that parent is traveling away from home. Here, the plaintiff, Beverly Ballard ("Ballard"), is a former Chicago Park District employee. In April 2006, Ballard's mother, Sarah, was diagnosed with end‐stage congestive heart failure. Ballard lived with Sarah and acted as her primary caregiver. In 2007, Sarah and a social worker met to discuss Sarah's end‐of‐life goals. Sarah said that she had always wanted to take a family trip to Las Vegas, and the trip and funding therefore were arranged.

Ballard requested unpaid leave under the FMLA from the defendant, the Chicago Park District, so that she could accompany her mother to Las Vegas. The Park District ultimately denied the request, although Ballard and her mother went anyway. Ballard continued to serve as her mother's caretaker during the trip. Several months later, the Chicago Park District terminated Ballard for unauthorized absences. Ballard then filed suit under the FMLA. The issue for the Seventh Circuit Court of Appeals (the "Court") was whether Ballard was entitled to FMLA leave, in order to care for her mother, even though the care was rendered during a trip to Las Vegas.

In analyzing the case, the Court said that the words "to care" for, as used in the FMLA regulations, include "physical and psychological care" without any geographic limitation. It agreed with the district court, which had stated that where the care takes place has no bearing on FMLA protections. The Court therefore ruled that entitlement to FMLA leave was not lost because of the Las Vegas trip.

February 6, 2014

Employment-Supreme Court Rules That Time Spent Changing To And From Protective Gear Is Not Compensable Under The FLSA

In Sandifer v. United States Steel Corporation, No. 12-417 (S.Ct. 2014), the Supreme Court faced the question of the meaning of the phrase "changing clothes" as it appears in the Fair Labor Standards Act (the "FLSA"). The plaintiffs were seeking backpay for time spent donning and doffing various pieces of protective gear, which the employer required them to wear because of hazards regularly encountered in their work at a steel plant. The district court granted summary judgment to the defendant, United States Steel Corporation. The Court of Appeals for the Seventh Circuit upheld this judgment, and the plaintiffs appeal.

In analyzing the case, the Supreme Court said that, in 1949, Congress amended the FLSA to provide that the compensability of time spent changing clothes or washing is a subject appropriately committed to collective bargaining (a "CBA"). Here, under the applicable CBA, changing clothes is not compensable time. But does the donning and doffing of protective gear qualify as "changing clothes"? The Supreme Court answered this by saying that "clothes" encompasses the entire outfit that one puts on to be ready for work-including the protective gear. As to "changing", the Supreme Court said that any alteration of dress will constitute a change. As such, the Court held that the plaintiff's donning and doffing of the protective gear at issue qualifies as "changing clothes", which is not compensable under the applicable CBA. Therefore, the Court affirmed the lower courts' rulings.

January 8, 2014

Employment-New York Court Of Appeals Holds That Plaintiff 's Claim Of Disability Discrimination Under New York City Human Rights Law Survives Motion To Dismiss

In Romanello v. Intesa Sanpaolo, S.p.A. (2013 NY Slip Op 06600), the plaintiff, Giuseppe Romanello ("Romanello"), had been an executive of the financial services firm, defendant Intesa Sanpaola, S.p.A. ("Intesa"). Romanello had worked for Intesa and its predecessor for approximately 25 years when he became ill and unable to work. He was diagnosed with a series of disorders including major depression. After a period of absence, Intesa terminated Romanello's employment. Romanello then brought this suit, claiming that, by terminating him, Intesa discriminated against him on the basis of his disability in violation of the New York State Human Rights Law (the "State HRL") and the New York City Human Rights Law (the "City HRL").

In analyzing the case, the New York Court of Appeals (the "Court") ruled that Romanello did not state a claim under the State HRL, since indefinite leave is not an accommodation under State HRL, and here Romanello never indicated when he might return to work from his absence. However, the Court said that the City HRL affords broader protections than the State HRL . The City HRL declares that it shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws have been so construed. As such, the Court said that it has held that the provisions of the City HRL should be construed broadly in favor of discrimination of plaintiffs, to the extent that such a construction is reasonably possible.

Continuing, the Court said that the City HRL requires that an employer make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job, provided that the disability is known or should have been known by the employer. Contrary to the State HRL, it is the employer's burden to prove undue hardship to avoid the need to provide reasonable accommodation. Also, the City HRL provides employers an affirmative defense if the employee cannot, with reasonable accommodation, satisfy the essential requisites of the job. Thus, the employer, not the employee, has the pleading obligation to prove that the employee could not, with reasonable accommodation, satisfy the essential requisites of the job.

In this case, Romanello, by letter from his counsel, made his disability known to Intesa. Intesa did not meet its obligation under the City HRL to plead and prove that plaintiff could not perform his essential job functions with an accommodation. The Court ruled that, because Intesa made no such allegation or showing the City HRL claim must survive Intesa's motion to dismiss.

January 7, 2014

Employment-NYC Makes Available Notice To Be Provided To Employees About Their Rights To Reasonable Accommodation For Pregnancy, Childbirth Or Related Medical Conditions

Yesterday's blog discussed the new law requiring NYC employers to provide reasonable accommodation to employees for pregnancy, childbirth or related medical conditions. The new law requires that notice be provided to employees about their rights under the new law. This notice must be provided to new employees beginning on January 30, 2014, and to existing employees by May 30, 2014. NYC has now issued the notice to be used. The notice is here. The notice may, but need not, be posted.

January 6, 2014

Employment-NYC Passes Law Requiring Reasonable Accommodation Of An Employee's Pregnancy, Childbirth Or Related Medical Condition

The New York City Council has passed a new law which requires NYC employers to provide reasonable accommodation for an employee's pregnancy, childbirth or related medical condition. The new law applies to an employer with at least 4 employees (including independent contractors). It becomes effective on January 30, 2014. Here is what the new law provides:

Unlawful Discriminatory Practice. It is an unlawful discriminatory practice for an employer to refuse to provide a reasonable accommodation (see definition below) to the needs of an employee for her pregnancy, childbirth, or related medical condition, that will allow the employee to perform the essential duties of the job.

A Reasonable Accommodation. For these purposes, a "reasonable accommodation" is an accommodation that can be made, and does not cause an undue hardship to the employer. The employer has the burden of proving undue hardship. Factors which may be considered to determine whether an undue hardship will exist include, but are not limited to: (1) the nature and cost of the accommodation; (2) the overall financial resources of the facility or the facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (3) the overall financial resources of the employer; the overall size of the business of the employer with respect to the number of its employees, and the number, type, and location of its facilities; and (4) the type of operation or operations of the employer, including the composition, structure, and functions of the workforce of the employer; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer.

Condition of Application. The unlawful discriminatory practice will not arise, unless the employee's pregnancy, childbirth, or related medical condition is known or should have been known by the employer. In any case in which the need for reasonable accommodation is placed in issue, it will be an affirmative defense of the employer that the employee could not, with reasonable accommodation, perform the essential duties of the job.

Notice of rights. The employer must provide written notice, in a form and manner to be determined by the NYC Commission on Human Rights, of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions to: (1) new employees at the commencement of employment and (2) existing employees by May 30, 2014 . This notice may also be conspicuously posted at an employer's place of business in an area accessible to employees.

January 2, 2014

Employment- The Annual Notice Required By The New York Wage Theft Prevention Act Is Due By February 1, 2014

The New York State Department of Labor website says the following:

The Wage Theft Prevention Act (WTPA) took effect on April 9, 2011.

The law requires employers to give written notice of wage rates:

• To each new hire
• To all employees by February 1 of each year

The notice must include:
• Rate or rates of pay, including overtime rate of pay (if it applies)
• How the employee is paid: by the hour, shift, day, week, commission, etc.
• Regular payday
• Official name of the employer and any other names used for business (DBA)
• Address and phone number of the employer's main office or principal location
• Allowances taken as part of the minimum wage (tips, meal and lodging deductions)

The notice must be given both in English and in the employee's primary language (if the Labor Department offers a translation). The Department currently offers translations in the following languages: Spanish, Chinese, Haitian Creole, Korean, Polish and Russian.

Sample Pay Notices

The employer may provide its own notice, as long as it includes all of the required information, or use the Department's sample notices. See our Wage Theft Prevention Act Forms for pay notices in a variety of languages.

More Information

The WTPA also included other provisions that employers need to know, such as stronger protections for whistleblowers and increased penalties for wage theft. Employers are strongly encouraged to review the Wage Theft Prevention Act Fact Sheet, and the Wage Theft Prevention Act Frequently Asked Questions.

December 31, 2013

Employment-NYS Raises Minimum Wage, Effective Today

A reminder-Effective today (December 31), New York State raises its minimum wage from $7.25 per hour to $8.00 per hour. There is an updated minimum wage poster, reflecting the new minimum wage, that employers have to put up in a conspicuous place prior to January 1. An updated poster and other information may be found here.

The federal minimum wage remains at $7.25, but I've heard that the President and others want to raise it to $10 or more. Stay tuned.

December 30, 2013

Employment-Second Circuit Upholds The Plaintiff's Claim Of Retaliation Under Title VII And New York State And City Law

In Kwan v. The Andalex Group LLC, Docket No. 12-2493-cv (2nd Cir. 2013), the plaintiff, Zann Kwan ("Kwan"), was appealing the judgment of the district court, which granted summary judgment to the defendant, The Andalex Group LLC ("Andalex"), dismissing various claims including retaliation in violation of Title VII and New York State and City law.
In this case Adalex terminated Kwan's employment, after Kwan complained to Andalex that she was being discriminated against because of her gender. Kwan alleged that the termination was in retaliation for so complaining.

In analyzing the case, the Second Circuit Court of Appeals (the "Court") affirmed the district court' summary judgment, except that it overturned the judgment against and dismissal of the retaliation claim. The Court found that, based on the discrepancies between an EEOC statement and subsequent testimony, a reasonable juror could infer that the explanation given by Andalex for the termination was pretextual, and that, coupled with the temporal proximity (3 weeks) between the complaint and the termination, Kwan's complaint to Andalex about the discrimination was a but-for cause of Kwan's termination. Viewing the evidence in the light most favorable to Kwan, as required on a motion for summary judgment, there is sufficient evidence to require denial of the summary judgment motion on the retaliation claim.

December 17, 2013

Employment-Second Circuit Rules That A Company Which Operates An Entity Could Be Considered A "Single Employer" With That Entity And Thus Be Liable For That Entity's WARN Act Violations

In Guippone v. BH S&B Holdings LLC, Docket No. 12‐183‐cv (2nd Cir. 2013), the Second Circuit Court of Appeals (the "Court") faced the issue of who is liable for violations of the Worker Adjustment Retraining and Notification Act ("WARN").

In this case, the Court ruled that: (1) the district court had correctly determined that the defendants who are private equity funds were investors, not "single employers", with their subsidiary within the meaning of WARN, and therefore could not be liable for the subsidiary's WARN violations, and (2) the district court erred in granting summary judgment to BHY S&B Hold Co, LLC ("BHY"), which operated the entity the plaintiff worked for, because the plaintiff raised a question of material fact as to whether BHY was a "single employer" with that entity, and thus could be liable for that entity's WARN violations.

December 12, 2013

Employment-Seventh Circuit Rules That A Financial Consultant Is Exempt From Overtime Pay Requirements

In Blanchar v. Standard Insurance Company, No. 12-2745 (7th Cir. 2013), the plaintiff, Thomas Blanchar ("Blanchar"), brought suit against the defendant, Standard Insurance Company ("The Standard"), to recover overtime pay pursuant to the Fair Labor Standards Act ("FLSA"). The Standard moved for summary judgment, arguing that Blanchar qualified as a bona fide administrative employee, and so was exempt from the FLSA's overtime requirement. The district court granted summary judgment in The Standard's favor, and Blanchar appeals.

In analyzing the case, the Seventh Circuit Court of Appeals (the "Court") noted that, to qualify under the bona fide administrative employee exemption, the employee must meet the following conditions: (1) he or she must be compensated on a salary or fee basis at a rate of not less than $455 per week ... exclusive of board, lodging, or other facilities; (2) his or her primary duty is the performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer's customers; and (3) his or her primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

The parties agree that condition (1) is met. To meet condition (2), the Court said that an employee "must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment." 29 C.F.R. § 541.201(a). "[E]mployees acting as advisers or consultants to their employer's clients or customers (as tax experts of financial consultants, for example) may be exempt." § 541.201(c). "Employees in the financial services industry generally meet the duties requirements for the administrative exemption if their duties include ... determining which financial products best meet the customer's needs and financial circumstances; advising the customer regarding the advantages and disadvantages of different financial products; and marketing, servicing, or promoting the employer's financial products. However, an employee whose primary duty is selling financial products does not qualify for the administrative exemption." § 541.203(b).

As to the instant case, the Court said that Blanchar's primary duty was to work with salespeople to promote the sales of The Standard financial products. He fielded calls from salespeople, recommended marketing materials and plans for certain customers, and educated The Standard's salespeople on the different types of plans. He did not directly engage in the sales of any 403(b) or 457 plans; he merely assisted salespeople with those sales. He frequently provided talking points and advice to pension salespeople, spoke at industry conferences and seminars, and educated firms about 403(b) plans. Since Blanchar was involved in advising salespeople and promoting the sales of 403(b) and 457 plans generally, the Court found that his duties and responsibilities satisfy condition (2).

As to condition (3), the Court said that "Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to ... whether the employee provides consultation or expert advice to management; [and] whether the employee is involved in planning long- or short-term business objectives." 29 C.F.R. § 541.202(b). The phrase "work involving discretion and independent judgment" implies that an employee "has authority to make an independent choice, free from immediate direction or supervision." § 541.202(c). "The term `discretion and independent judgment' does not require that the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review. ... The fact that an employee's decision may be subject to review ... does not mean that the employee is not exercising discretion and independent judgment." Id.

As to the instant case, the Court said that Blanchar's duties --promoting sales, advising sales staff, and fielding questions--required the exercise of discretion and independent judgment. He scripted talking points for consultants to further the sales of 403(b) and 457 plans. He used his knowledge and experience to develop presentation materials and to answer questions from pension consultants. When presenting or speaking at conferences, Blanchar used materials he himself had prepared, which were later approved by The Standard's legal and marketing departments. He worked largely alone and met with his supervisor only once a year. Though Blanchar lacked final decision-making authority, his work involved a great deal of discretion and independent judgment. The Court concluded that Blanchar meets condition (3). Meeting all the conditions, the Court further concluded that Blanchar is an exempt bona fide administrative employee, and it affirmed the district court's summary judgment.

December 11, 2013

Employment-Fifth Circuit Rules That Former Employee Has Made Out A Prima Facie Case Of Retaliation Under Title VII

In Royal v. CCC&R Tres Arboles, No. 12-11022 (5th Cir. 2013), the plaintiff, Tonia Royal ("Royal"), worked at an apartment complex for only four days before she was fired by defendant CCC&R Tres Arboles ("CCC&R"). During this brief time, she was regularly visited in her small office by two maintenance men who hovered over her and sniffed her in a sexually suggestive manner. When she complained to her superiors about this sexually harassing behavior, she was then fired for unspecific reasons. Royal then filed this suit, claiming retaliation in violation of Title VII for complaining to the supervisors. The district court granted summary judgment against her on the retaliation claim, and she appeals.

In analyzing the case, the Fifth Circuit Court of Appeals (the "Court") said that Royal has shown genuine issues of disputed material facts whether the described conduct created a hostile work environment in violation of Title VII, and, if so, whether her complaint about that conduct was causally related to her termination. As such, Royal has made out a prima facie case on her retaliation claim. Consequently, the Court vacated the district court's summary judgment and remanded the case back to the district court for further proceedings.

December 10, 2013

Employment-U.S. Department Of Labor Signs Agreements With NY Labor Department And NY Attorney General's Office To Reduce Misclassification Of Employees

According to a WHD News Release (11/18/13), officials of the U.S. Department of Labor's Wage and Hour Division, the New York State Labor Department and the New York State Attorney General Eric T. Schneiderman's Office have signed memoranda of understanding to protect the rights of employees by preventing their misclassification as independent contractors or other nonemployee statuses.

According to the News Release, the memoranda of understanding represent a new effort on the part of the three agencies to work together to protect the rights of employees and level the playing field for responsible employers by reducing the practice of misclassification. The New York State Labor Department and New York State Attorney General's Office are the latest state agencies to partner with the Labor Department. In the last two years, the Wage Hour Division has secured over $18.2 million in back wages for more than 19,000 workers where the primary reason for minimum wage or overtime violations under the Fair Labor Standards Act was that workers were not treated or classified as employees. This represents a 97 percent increase in back wages following the implementation of these agreements.

The News Release adds the following:

Business models that attempt to change or obscure the employment relationship through the use of independent contractors are not inherently illegal, but they may not be used to evade compliance with federal labor law. Although legitimate independent contractors are an important part of our economy, the misclassification of employees presents a serious problem, as these employees often are denied access to critical benefits and protections-such as family and medical leave, overtime compensation, minimum wage pay and Unemployment Insurance-to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often find it difficult to compete with those who are skirting the law.

Memoranda of understanding with state government agencies arose as part of the department's Misclassification Initiative, with the goal of preventing, detecting and remedying employee misclassification. California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington have signed similar agreements. More information is available on the Department of Labor's misclassification website at http://www.dol.gov/misclassification/.

November 18, 2013

Employment-Second Circuit Rules That A Settlement Payment Constitutes Wages And Is Subject To FICA Tax.

In Gerstenbluth v. Credit Suisse Securities (USA) LLC, Docket No. 12-4125-cv (2nd Cir. 2012), the plaintiff, Chester Gerstenbluth ("Gerstenbluth"), sued his former employer, Credit Suisse Securities (USA) LLC ("Credit Suisse"), and the Internal Revenue Service, seeking a refund of Federal Insurance Contribution Act ("FICA") taxes withheld by the employer and collected by the IRS on a $250,000 settlement payment made by Credit Suisse to Gerstenbluth. The settlement payment was made primarily in consideration of Gerstenbluth's agreement to withdraw his Age Discrimination in Employment Act complaint, which he filed after Credit Suisse terminated his longtime employment. The district court dismissed Gerstenbluth's complaint against Credit Suisse and granted summary judgment to the Internal Revenue Service. Gersenbluth appeals.

In analyzing the case, the Second Circuit Court of Appeals (the "Court") said that Gerstenbluth contends that the district court erred in concluding that the settlement payment constituted "wages" received "with respect to employment" under 26 U.S.C. § 3121, and was thus subject to FICA taxes. The Court concluded that the district court was correct, and affirmed its decisions.

Why did the Court agree that the settlement payment was wages from employment and therefore subject to FICA tax? The Court said that here, the settlement agreement between Gersenbluth and Credit Suisse contemplated that Credit Suisse would withhold "applicable" taxes from the settlement payment, and that the payment would be reduced by that amount. This contemplation creates a strong presumption that the company made the payment in lieu of lost wages and that the payment is therefore wages and taxable under FICA. The Court indicated, further, that this presumption is strengthened here, since Credit Suisse classified the settlement payment as "[w]ages, tips, other 3 comp[ensation]" on Gerstenbluth's Form W-2. The Court found that Gersentbluth could offer no argument or evidence to rebut this presumption that the settlement payment was wages.