California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

There is no doubt that receiving a pink slip will leave a sour taste your mouth, but a well-negotiated severance package may be the perfect sweetener. There is no law requiring employers to pay severance benefits, but many do so in order to avoid conflict with exiting employees. At the bare minimum, employers must pay for earned compensation and accrued vacation days. If this is all your employer offers, it is not extending benefits, but rather fulfilling its legal obligation. True severance benefits are perks that the employer is not required to provide such as extended insurance coverage, contribution to retirement funds, favorable references, and outplacement services, among others. Your employer will certainly assemble a package that is in its best interest and you are by no means required to accept and you may make a counteroffer.

The first step to negotiating a favorable severance package is to place yourself on equal footing with your employer. Convey your value to the company. Typically, the longer your length of employment, the better your bargaining power. If you have specialized skills or knowledge, you may take them with you to a competitive organization. Play up your contributions to the company. It is helpful to refer to positive performance reviews, work on special projects, or established relationships with important clients. Also keep in mind your employer’s position. If the company is in dire financial straights and laying off employees or going out of business, it may not be able to offer certain benefits. You may want to ask around and find out what other employees have been offered. 

Strategy:

After evaluating your bargaining position, determine what benefits you will request. In addition to monetary compensation, there are other valuable benefits that may be included in a severance package. Some items to consider are as follows:

• Insurance Coverage: Health and life insurance coverage typically ends on the day of termination or shortly thereafter. Your employer may extend coverage for a specific period of time or until you purchase coverage from another provider. 401K/Retirement Benefits: Your employer may make a lump sum contribution to your 401K or make periodic contributions while you are receiving severance pay.
• Sick Leave: Employers are not required to pay for accrued sick days, but may do so as part of a severance agreement.
• References: A positive reference letter outlining your responsibilities, accomplishments, job longevity, and commitment to the company will be vital to your future job search. It is also wise to obtain the name and phone number of an individual who will serve as a reference. Letters and reference calls are little cost to the employer and will be invaluable to you. 
• Outplacement Services: Often employers will offer to pay for college courses or career training and allow access to office equipment such as computers, phone, fax, and secretarial staff. 
•  Form of Payment: Whether your severance pay will be paid as a lump sum or monthly payments may have significant tax implications. For instance, severance payments may not be considered as taxable wages. (http://www.law-job.com/7312.shtml) Check with your tax accountant or CPA to confirm this information before acting.

The aforementioned benefits are open for negotiation, but understand that in order to obtain those benefits that you really want you must be willing to part with others. Imagine your spouse is ill and you are not too concerned about payment for accrued sick days. If you agree to accept little or no payment for sick days, then your employer may be more willing to extend health coverage.

Keep in mind that employers often place conditions on the payment of severance benefits. These conditions may include a waiver of all legal claims against the employer and promises to neither disclose the terms of the severance agreement nor engage in activities that are against the best interests of the employer. Be aware that a release typically only protects the employer and is a legally binding contract; therefore, you should carefully review the terms before signing.

If you are presented with a severance package and release, immediately consult a California labor law attorney. A knowledgeable attorney will be able to advise you of your rights and insure that the terms of the release are fair and equitable. Moreover, a labor law attorney may be able to secure better terms by intervening in negotiations on your behalf.
 

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Have your unemployment benefits dried up? Are you buried under a mountain of debt? If that’s the case, the federal government may help to dig you out. On November 6, 2009, President Obama signed into law HR 3548 (PL 111-92), which provides for the temporary availability of additional Emergency Unemployment Compensation (EUC) to those unemployed workers whose benefits have expired or will expire before the end of the year. In states with unemployment over 8.5%, benefits will be extended by 14 weeks with the potential for an additional six weeks, for a total of 20 weeks.

According to the Bureau of Labor Statistics, the California unemployment rate in September 2009 was 12.2% and ranked the fourth highest in the nation; therefore, the new law will have a direct impact on the state. The California Employment Development Department (EDD) has estimated that 285,000 residents may be eligible for the new extension.  Unfortunately, workers are not likely to see benefits for several weeks. The law is confusing and will be difficult for the state to implement.

One obstacle is the adjustment to the tiers of unemployment benefits. Prior to enactment of the new law, there were only two extensions available to qualified workers. Tier 1 provided for a maximum of 20 additional weeks of EUC in all states and Tier 2 offered an additional 13 weeks of EUC in states with an unemployment rate of more than 6% for 3 consecutive months. The new legislation bolstered Tier 2 and added Tiers 3 and 4. Tier 2 now provides up to 14 weeks of EUC in all states regardless of the unemployment rate. Tier 3 offers 13 weeks of EUC in states with an unemployment rate of at least 6%. Finally, Tier 4 provides an additional 6 weeks of benefits in states with an unemployment rate of at least 8.5%.

Another difficulty with the new legislation is that while it extends the availability of EUC, it does not extend the filing deadline. All claims under any tier must be filed by December 31. This deadline is problematic because the 14 weeks of EUC available under Tier 2 must be exhausted before one can apply for the additional six weeks of benefits available under Tier 4. Since there are less than 14 weeks left in the year, it is impossible for anyone to apply for Tier 4 benefits.  Consequently, these benefits will only be available if Congress passes additional extension legislation before the December 31 deadline.

Strategy:

If you are one of the 100,000 California workers who have exhausted previously available unemployment benefits, you may be eligible for an extension under the new legislation. Over the next couple weeks, the EDD will be notifying employees of their potential eligibility via mail or a message on their last unemployment check. The EDD will also automatically file extensions for eligible employees. If you do not receive notification or confirmation of an extension, contact the EDD.  In the event that you believe you are entitled to an extension and have been denied this extension or your unemployment benefits all together, consult a California labor law attorney to determine your rights.
 

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The law requires that workers must be given time to rest and eat during the work day.

The question now before the highest court in California is, who is responsible to make sure the law is followed?

Abuse abounds in this area of law. Employers acknowledge that employees are entitled to normal breaks and meals during the day. At the same time some employers create an environment that systematically discourages breaks.

The result is that employees are forced to work through these breaks and many times must eat on the run.

In some lower court cases the employer has been able to persuade the judge that a policy allowing breaks is all that is required. Lawyers that represent workers have demonstrated that this leads to mass violations of the law. It is no secret that if an employee demands his right to rest and eat he is likely to find himself in hot water.

This fight has been taken head on by class action attorneys who are able to represent the entire employee base without putting individual workers at risk. This approach is an effective deterrent to employers who systematically violate the law. Employers are trying to prevent enforcement by taking the position that any violations, even if wide spread, should be handled on an individual and not a class wide basis. To sustain this position employers argue that it is the individual employee who has the power to decide to work thru his breaks. Therefore the employer states that it should not be held responsible on a class wide basis even if it is found to be a systematic problem. Under this view of the law; even if there are intentional violations then each employee must individually enforce his rights through the courts and this is obviously highly impractical.

In order for the law to be meaningful the Supreme Court is being asked to find that the burden is on the employer to prove that these breaks and meal periods are not only policy but also being enforced. The fact is that this does not create any meaningful burden on the employer as he has the ability to control and monitor.

The main cases now under review by the California Supreme Court are two Court of Appeal, court decisions in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), 2008 WL 2806613 (Cal. Ct. App., July 22, 2008), and Brinkley v. Public Storage, 2008 WL 4716800 (Cal. Ct. App., October 28, 2008).

Your employer must make meal breaks available to you if you are a non exempt employee (an employee who is eligible to receive overtime pay). Failure to provide a meal break obligates an employer to pay non exempt employees one hour of pay.

The Law:

An employer must pay a nonexempt employee an hour's pay for failure to provide a meal or rest period.

An employer who falsifies employment records is in serious trouble under a recently enacted California statute, As of January 1, 2009, makes it is a crime for an employer to require an employee sign-off on any record of hours worked that the employer knows to be false.

This provides added protection where managers force employees to sign statements regarding their hours worked knowing at the time it is untrue or where they alter time cards.

Strategy:

The fact is that over time the right to back compensation, interest and penalties add up to big dollars especially if it has occurred over an extended period of time. You are permitted to recover for missed meal and breaks for a period extending back over 4 years from the time you file your claim in court.

It is easy to get sound advice and an estimate of how much you may be owed by contacting a qualified California labor law attorney. Many of these matters are taken on contingency so you do not have to pay for representation unless you recover on your claim.

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