Employee must be able to prove that boss orally promised raise

CAN THEY DO THAT?

December 21, 2005|By CARRIE MASON-DRAFFEN | CARRIE MASON-DRAFFEN,NEWSDAY

A friend of mine took a job in part because she was promised a pay raise after three months and again after six months. She has not received either of those raises. Even though the increases aren't mentioned in her contract, her supervisor promised her a raise and even negotiated an amount. She has spoken with her, but nothing has happened. Does my friend have any recourse?

Whether she has any legal recourse depends on the "enforceability" and "provability" of the oral promise her supervisor made, according to New York employment attorney Alan Sklover, who frequently represents employees in similar situations.

The enforceability comes down to whether your friend's contract contains words that say, in effect, "This contract is the only agreement between the employee and the employer; any other spoken or written expressions don't count."

"If the contract does contain such a clause or words similar to it," Sklover said, "then, just like the words say, `Nothing else counts.'"

Therefore, he said, "that would make the spoken promises about raises that your friend received entirely unenforceable." If no such clause exists in your friend's contract, then her case would proceed to the second critical test, provability.

"Simply put," Sklover said, "were there any witnesses, or tape recordings, or follow-up, confirmatory memos that could serve as evidence of the promised raises?"

Sklover stressed that most promises made in commerce - from the promise to pay the restaurant tab to the promise to pay the plumber - are oral.

"It's just a question of provability. If the promises about raises given to your friend are both enforceable and provable, then legal recourse exists. Without both, legal recourse is doubtful, at best."

Even if she has a basis to file a lawsuit, that should be the last resort because "employment relations are often irreparably damaged by lawsuits or threats of lawsuits," he said.

carrie.draffen@newsday.com

Carrie Mason-Draffen writes for Newsday.

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