A former in-house lawyer for industrial gas manufacturer Linde North America can move forward with part of his lawsuit claiming the company shorted him about $112,000 in compensation after he settled a potential whistleblower claim.

Linde may have breached a unilateral contract with Mark Weller when it calculated his benefits under an executive compensation plan without reference to a $1 million settlement Weller received from the company, Chief Judge Jose L. Linares of the U.S. District Court for the District of New Jersey held April 24.

But Weller can’t sue Linde under the Employee Retirement Income Security Act, because the company’s “Pension Excess Program” wasn’t an ERISA-governed plan, Linares said.

The dispute followed a 2014 incident in which Weller said he was directed to engage in conduct that would violate federal antitrust laws. Linde terminated Weller after he reported the incident, and the parties reached a $1 million settlement after Weller threatened to file a whistleblower lawsuit.

Weller said this settlement should have substantially increased his annual payment under Linde’s pension excess program. The program pays highly-compensated employees the excess contributions they would have received under Linde’s pension plan had their salaries not exceeded limits set by the federal tax code.

Linares focused his unpublished opinion on whether this program qualified as an ERISA-governed benefit plan. Linares said no, because employees received payments in the calendar year following the year in which those payments were earned, and not upon retirement. The fact that some payments might be made after an employee’s retirement didn’t transform the program into an ERISA plan, Linares said.

Linares contrasted the Linde plan with an RBC Capital Markets Corp. plan that the Fifth Circuit recently held to be ERISA-covered. Unlike the RBC plan, the Linde plan didn’t allow employees to choose up front that their benefits would be deferred until retirement, Linares said.

Linares rejected Weller’s ERISA claim but allowed him to move forward on his breach of contract claim.

Brach Eichler LLC represented Weller. FordHarrison LLP represented Linde.

The case is Weller v. Linde Pension Excess Program, 2019 BL 146450, D.N.J., No. 2:16-cv-04254-JLL, unpublished 4/24/19.