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

We have placed some of the most common concerns in an easy to follow question and answer format.

Question: How does an employee qualify for unemployment insurance?

Answer: The main criteria is you have to be unemployed. You are not allowed to claim unemployment insurance for the same period of time you are working. This is illegal and can land you in a lot of trouble.

Additionally, you have to have been laid off or fired (not for willful misconduct). If you simply quit in most instances you will not qualify for unemployment insurance. You should understand that even if you do initially qualify for unemployment benefits, your employer is able to appeal such ruling and that ruling could be reversed. Some employers do this for good reason and others because they are vindictive.

Question: Can I file my claim online or do I need to go the unemployment office of EDD?

Answer: Conveniently, you may now file for your unemployment benefits online. No more embarrassing visits to the unemployment office.

Question: Can I be disqualified for unemployment benefits if my employer fires me for being late to work or failing to meet my performance goals?

Answer: To be disqualified for benefits your conduct must rise to the level of willful misconduct as interpreted by EED or ultimately a judge. One example of this might be carrying weapon to work another may be driving a company vehicle while intoxicated.

It is not uncommon for an employer to attempt to challenge unemployment benefits if an employee has another labor case pending against the employer. The reason for this is they will have a chance to question and gather evidence at this hearing that may enable them to have an advantage in the other labor matter. For this reason, it is wise to have a California labor lawyer represent you in the unemployment hearing if you have another labor case pending against the employer in order to keep the questioning on point with the unemployment issues only.

If you have questions related to unemployment insurance and cannot resolve them through communications with EED it is important that you speak to a California labor lawyer?

This is especially necessary if you believe that you have other labor claims aside from unemployment insurance as a California California employment lawyer?

can advise you as to how to protect your interests prior to the hearing with EED?

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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California unemployment has not subsided as many companies continue to still struggle to recover from the downturn of the economy. The current unemployment rate in California is over 12%.  A recent survey held that 63% of small businesses will not be hiring new employees.

If you are facing a possible layoff or downsizing consider taking the following important three steps.

1.  Secure all performance evaluations, letters of reference, and letters of commendation mentioning landmark projects you worked on, expense reductions you have achieved for your company, or revenue goals you have met or exceeded. In other words, “toot your own horn.” Gathering this information will help you in three ways. First, it will remind you of your own achievements and value, second if you work with your manager to gather this information, it will remind your manager of the value you bring to the organization, and last, this information will be invaluable in interview should the need arise, should you be laid off.

2. If the company is laying off employees and you have been selected for layoff, consider approaching management and offering to take a pay reduction or alternatively to move to another department even if a reduction in pay will ensue. While, this may not “feel good” nevertheless, it may behoove you to maintain full time employment and take a pay reduction instead of facing the ominous task of hunting for a job in this marketplace.

3.  If you are facing layoff, ask for a severance package. Have you ever heard the phrase, “ask and you shall receive?” Certainly, the opposite is true. If you do not ask, certainly you will not receive. Now the question is how much to ask for. You do not want to be unreasonable and you should consider the financial condition of the company. Considering factors such as this, will allow you the greatest chance for acceptance. Also, the company may already have a policy on severance pay based on years employed. Check your employee handbook to determine if this is the case.

If your company elects to provide you with severance pay, you should expect to sign a release that may prohibit you from pursing certain types of labor related claims. It is important to have an experienced California labor law attorney review this release before signing it and most of these agreements state that you have been given the chance to “have an attorney review this agreement”.

California labor law can be complex and before you decide to accept the severance pay and sign anything it is very important to understand what you may be giving up. The cost of having an attorney take a look at the paperwork may even be done as a courtesy or at very little cost.

Keep in mind that your employer is not just being kind to you. Your company most likely wants something in return and that something could be worth tens or even hundreds of thousands of dollars. We have seen many uninformed employees sign away very valuable rights for pennies on the dollar.
 

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When an employee is terminated or resigns from their job Federal COBRA law requires most employers to continue to make the current group health insurance available to workers. All employees who are discharged as a result of voluntary or involuntary termination, such as for: negligence, poor performance, or inefficiency (with the exception of those who are terminated for gross misconduct), may opt to continue plan benefits currently in effect at their own cost, provided the employee or beneficiary makes the first payment within 30 days of notification and is not covered under Medicare or any other group health plan. The law also applies to qualified beneficiaries who were covered by the employer's group health plan the day before the discharge. For example, if the employee decides not to continue coverage, her spouse and dependent children can elect continued coverage at their own expense.

The extended coverage period is 18 months upon termination of the covered employee; upon the death, divorce, or legal separation of the covered employee, the benefit coverage period is 36 months to spouses and dependents.

The law requires that employers or plan administrators independently notify all employees and covered spouses and dependents of their rights to continued coverage. After receiving such notification, the individual has 60 days to decide to continue coverage. Moreover, employees and dependents whose insurance is protected under COBRA have to be provided with any conversion privilege otherwise offered in the plan (if such coverage exists) within a six-month period prior the date on which coverage would terminate at the end of the continuation period.

A number of employers run afoul of the law in failing to adhere to the rules regarding notification requirements, excluded individuals, conversion privileges and time restrictions. In the event the employer fails to offer such coverage, the law imposes penalties ranging from $100 to $200 per day for each day the employee is not covered and other damages. 

However it’s important to note that you cannot attain benefits if you are fired for gross misconduct. This term is relatively ambiguous; the burden of proof is on the employer to prove that the discharge was for a compelling reason (such as starting a fight or stealing). 

If an employer reduces your working hours to a point that makes you ineligible for group health coverage, refuses to negotiate continued health benefits as part of a severance package, or fails to notify you of the existence of such benefits or if the employer refuses to offer continued COBRA benefits after a discharge for any reason, consult an experienced California labor law attorney immediately.

Tip: Know your COBRA rights before accepting any job and in the event you resign or are fired. This is particularly true if you or a spouse or dependent is sick and needs the insurance benefits to pay necessary medical bills. You are entitled to such protection even if you have worked for the employer for a short period of time. Most short-term employees can generally enjoy COBRA protection for periods exceeding the length of their employment. The only requirement is that you must have been included in the employer's group plan at the time of the firing and that the employer was large enough (i.e., employed 20 or more workers, including part-timers, independent contractors, and agents, during the preceding year) under federal law to qualify.

Strategy:

1. Be sure the company notifies you in a timely fashion so you can make the election properly before the short period of employer-provided coverage expires.
2. Never waive your COBRA rights when accepting severance payments or signing a release after a discharge if you or your dependants need continued insurance.
3. A company's hands may not be tied in the event that a group health plan is modified or eliminated; an employer may be permitted to change or eliminate a current plan provided all qualifying beneficiaries and covered employees are allowed to participate similarly under new plans, if any.
4. Coverage for adopted children, children born out of wedlock, and other dependents has been expanded under the Omnibus Budget Reconciliation Act of 1993 and recent court decisions. 
5. Speak to a California Employment lawyer if you or a dependent is excluded from COBRA protection because of the existence of a secondary health plan or other factors, such as because of an alleged discharge for gross misconduct.

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On March 18, 2010, President Obama signed into law the Hiring Incentives to Restore Employment (HIRE) Act. The bill is designed to encourage job growth by providing tax incentives to businesses willing to hire unemployed workers. These incentives take two forms: (1) social security tax exemptions and (2) tax credit.

• Social Security Tax Exemption

The HIRE Act exempts employers from paying the 6.2% social security tax for new employees hired after February 3, 2010 and before January 1, 2011. However, the new employee must have been previously unemployed or worked less than 40 hours per week for at least 60 days and does not replace another employee. The bill encourages businesses to hire early in the year because savings accrue as payroll is processed. The tax relief applies to all employers, including non-profit organizations and universities, and there is no cap as to the total amount of tax relief that can be claimed by an employer. 

• Tax Credit

For each qualifying new employee, the employer may claim an income tax credit. The amount is either $1,000 for each employee hired after February 3, 2010 and retained for at least a year, or 6.2% of wages paid to the qualifying employee over the period of a year, whichever is less. Unemployed workers should be aware that employers may ask them to sign an affidavit indicating they have not been employed or employed for no more than 40 hours per week during the 60 day period prior to beginning their new employment. This is a requirement under the new legislation. 
Thankfully, in IR-2010-33, the IRS announces it is in the process of developing a standard form that can by used by all employers to obtain the required statement. 

According to IRS Commissioner Doug Shulman, these tax incentives will “offer a much- needed boost to employers willing to expand their payrolls, and businesses and non-profits should keep these benefits in mind as they plan for the year ahead.” The tax benefits primarily benefit those employers who are filling new jobs, but the benefits are also available to employers who are filling existing positions where the former employee left voluntarily or for cause. 

President Obama asserted that this new bill will “promote a strong, dynamic private sector” that will drive job creation. He stated that “…our economy is now growing again and we may soon be adding jobs instead of losing them. The jobs bill I’m signing today is intended to help accelerate this process.” He further indicated that although the bill was necessary, it is only one in a series of bills designed to encourage job growth.  

While Democrats champion the HIRE Act, the bill is not without criticism. Many Republicans believe the bill will have little impact on unemployment. As reported by CBS News, there are estimates of roughly $250,000 new jobs by the end of the year, but “the Associated Press notes that this is a relatively insignificant figure in light of the fact that 8.4 million jobs have been lost in the recession.” 

While the ultimate effect of the bill remains to be seen, unemployed California workers should take solace in the fact that strides are being made toward new job creation. If you are an unemployed worker and have questions about your unemployment status or concerns regarding inquiries made by potential employers, do not hesitate to contact an experienced California labor law attorney.
 

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Given the dismal state of the economy, many California workers are walking around with the possibility of being laid off looming over their heads. Even if they are not laid off, they may see their work schedules and salaries reduced. Many companies are using temporary schedule and salary reductions to cut costs until business conditions improve. The key for affected employees is to know the guidelines for such reductions.

First and foremost is the question of whether affected employees have exempt or non-exempt status. Under California law, all employees are considered to be non-exempt, meaning that they are entitled to overtime pay. The only exception is for those employees that meet all the requirements of an applicable exemption, most commonly the executive, administrative, or professional exemptions. To qualify for these exemptions an employee must pass the salary test and duties test. The salary test requires an employee to earn a monthly salary that is no less than two times the minimum wage for full-time employment. The duties test requires an employee to be primarily engaged in managerial responsibilities.

With respect to non-exempt employees, it has long been established that an employer may temporarily reduce their workers’ schedules and wages. The issue is a bit more complicated for exempt employees. According to the California Department of Labor Standards Enforcement (DLSE), theLabor Code and Industrial Welfare Commission wage order provisions nor federal law prohibits an employer from reducing the work schedules and salaries of exempt employees. Therefore, absent an employment contract or other agreement that states otherwise, an employer can reduce an exempt employee’s salary as long as they continue to earn more than twice the minimum wage and engage in exempt job duties.

One restriction is that the salary reduction cannot be linked to any corresponding change in days and hours worked. For example, an employer could not reduce an employee’s salary by 15% in exchange for giving them Fridays off. According to the California Department of Labor Standards Enforcement (DLSE), this type of salary reduction structure would violate the salary test and destroy the employee’s exempt status and non-exempt labor requirements such as meal and rest breaks would apply. The rationale is that exempt employees are paid for their work product regardless of the amount of time they take to complete their duties. Tying work hours to earnings is not in accord with being a salaried employee. 

Another consideration is that the salary reduction should also apply to all exempt employees or at least everyone with the same job duties. Applying a reduction to only certain exempt employees could violate anti-discrimination laws.

If your employer is attempting to reduce your work hours or salary, contact an experienced California labor law attorney. An attorney can advise you of your rights and evaluate your specific employment situation.
 

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Last year found many California workers with personal finances in the deep red. According to the U.S. Department of Labor, California had the greatest number of job losses with over 617,000 workers either laid off or terminated.  Accordingly, the number of residents regularly receiving unemployment checks and filing new claims for unemployment benefits rose. The good news for the unemployed is that an economic recovery is projected for 2010. After cutting costs and laying off workers, employers will need new employees to meet increasing production demand. Lynn Reaser, chief economist at Point Loma Nazarene University, has predicted there will be job growth in all areas of the economy especially in the tech, health care, and accounting sectors. Although unemployment rates will be slower to improve than industry growth, Reaser suspects that the national unemployment rate will level out at 9.5 percent.

The other piece of good news is that the federal government is stepping in to create more jobs through its $500 million green jobs initiative. It may be said that “money doesn’t grow on trees,” but unemployed workers may earn some much needed green by helping out the environment. Following the millions of dollars already authorized, theU.S. Department of Labor recently announced an additional $150 million in grants for workers willing to be trained in energy efficiency jobs. Authorized by the American Recovery and Reinvestment Act, this award is part of a round of grants that will be used in projects in areas of the country with at least a 15% poverty rate. The goal is to provide the unemployed, particularly high school drop-outs and minorities, with basic education and occupational skills so they may find work in an eco-friendly career.

 Organizations receiving grants in California include:

• The Los Angeles Community College District
• The National Council of La Raza for San Jose and San Diego
• Northern Rural Training and Employment Consortium
• The West Hills Community College District

In addition, more green grants are expected to be announced in the next couple weeks. 

Over the next month or so the program will be working closely with employer groups to determine how much demand there is for certain types of jobs and the amount of training required for each. The type of work is lkely to be varied, but probably best suited for individuals who like working outdoors, have some construction experience, or simply want a career change. If you are interested in applying for the program, you can visit the Employment Development Department (EDD)’s One-Stop Career Center in your county.  Even though applications won’t be available for several weeks, unemployed workers can still take advantage of the center to register for California labor law attorney.
 

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IMPORTANT – Do not sign any agreement in which you may be settling any rights you may have without first checking with an attorney that experienced in Labor Law.

On termination you may be offered a severance package in exchange for giving up your rights to back overtime pay. These rights could actually be worth well over $100,000 and you may lose them.

Many Labor Law attorneys will take a look at your situation without charge and give you piece of mind that you interests are protected.

One word can be used to best describe the California information technology (IT) industry this past year: layoffs. Although the technology industry grew overall, layoffs dominated as major companies continued to trim their workforce. The companies with the some of the most drastic cuts included IBM, Novell, Microsoft, Cisco, and Sun Microsystems.  As a result many technology workers are starting off the New Year without a job or, perhaps even more disheartening, training their foreign replacements. An increasing number of tech companies are using L-1 and H1-B workers to reap the benefits of highly skilled professionals for a much lower cost than their American counterparts. This leaves California workers to train these new employees for little compensation, usually the promise of a few weeks of additional pay or a severance package.  However, employees on their way out the door have rights and should not hesitate to milk the benefits due to them from their employers. Federal and state laws mandate that employers make a final payment of wages, overtime pay, and accrued vacation time at the time of a layoff or face stiff penalties.

Of particular concern for IT professionals is employers’ frequent denial of overtime pay. Despite popular belief, all employees in California are entitled to overtime pay unless they fall within a particular exemption or wage order. IT jobs encompass a wide range of duties and usually require long hours, working from home, and the ability to be “on call.” Unfortunately, many workers never see a check for their earned overtime, because their employers misclassify them as exempt from overtime pay. The determination of whether an IT employee is exempt requires a careful analysis of the employee’s duties and how they relate to the company’s overall operation.

The Department of Labor has opined that IT specialists whose primary duty “consists of installing, configuring, testing, and troubleshooting computer applications, networks, and hardware” do not qualify for the administrative or computer employee exemptions under the Fair Labor Standards Act.  Many IT employees are also not likely to qualify for the executive exemption. Unless they spend over one half (51%) of their weekly work time engaged in managerial responsibilities, they will likely be non-exempt and therefore entitled to overtime pay. Examples of managerial responsibilities include negotiating on behalf of the employer, influencing company policy, and supervising others. It is important for employees to remember that it is the actual job duties and not the job title that determines whether an exemption applies. Employers often manipulate job titles, pay structures, or management levels to classify employees as exempt so as to avoid paying overtime costs; yet, they do this at the risk of huge penalties.IT workers who have been wrongfully denied overtime pay under federal law are entitled to liquidate damages. This means employees can collect double the amount of their normal overtime rate. 

If you are an IT worker facing a layoff or otherwise suspect that you have been misclassified by your employer, now is the time to take steps to protect yourself against loss of overtime and other valuable benefits.

Strategy:

1. Request a full copy of your payroll records from your employer as soon as possible. Certain documents in your employee file, must be made available to you within 21 days of your request.
2. Gather all documentation establishing your wages and benefits immediately prior to the layoff, including itemized wage statements (pay stubs), W2 forms, a calculation of your overtime pay, proof of your total accrued vacation time, and a copy of your employer’s benefit plan.
3. Compile a list of your job duties and obtain the names of witnesses who can testify regarding your day to day work duties and hours worked, including supervisors, co-workers, industry contacts, etc.
4. Visit the human resources department and request a copy of your personnel file. This file will contain performance reviews, awards, contractual agreements and other items that will be beneficial to you. Remember you have a legal right to any documents that you have signed. It is also wise to copy all company policies, employee manuals, and other data that is non-proprietary and that you would have access to as an employee.
5. Remove all personal items from your place of work, including your computer. If you have created any personal files or installed software, copy and delete them. Be careful not to take anything that may be considered proprietary, such as customer lists, proposals, financial reports, etc.
6. Consult a qualified California labor law attorney to obtain an unbiased analysis of your situation. The above documentation will help to assess you case and obtain money to which you are rightfully entitled.
 

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While companies continue to downsize their workforce in order to cut costs, they may try to avoid being hit with the additional expenses associated with layoffs. This includes payment of wages, overtime, and accrued vacation days as well as expensive severance packages. No doubt there is a similar incentive for employers to dodge the payment of unemployment benefits. The key for employees is know their rights and recognize when it is appropriate to appeal a denial.

Generally, all employees who have lost their job “through no fault of their own” are entitled to collect unemployment benefits provided that they are:

(1) Completely unemployed or working less than full-time,
(2) Ready and looking for work,
(3) Have worked within the last 18 months

One exception is if the employee has been “discharged for misconduct connected with his or her most recent work.” (Unemployment Insurance Code, Section 1256) The Employment Development Department (EDD), not the employer, determines what behavior rises to the level of misconduct. As defined by the California Court of Appeals, misconduct is “a substantial breach by the claimant of an important duty or obligation owed to the employer, willful or wanton in character, and tending to injure the employer.” (Maywood Glass Co. v. Stewart (1959) 170 Cal.App.2d 719) Examples of misconduct include the sale of drugs on the employer’s premises, theft of company property, and assault of other employees. On the other hand, many legitimate reasons for termination such as tardiness, poor work performance, and ordinary negligence are not misconduct.  If misconduct is established, it must also be the direct and proximate cause of the employee’s termination. (Precedent Decision P-B-192). The employer bears the burden of proof in cases involving misconduct. (Prescod v. California Unemployment Insurance Appeals Board (1976) 57 Cal.App.3d 29)

Because disqualification under section 1256 is fact-specific and largely subjective,
it is often misunderstood by employees and taken advantage of by employers. Companies may attempt to avoid payment by camouflaging a financially induced layoff as a case of wrongdoing or “misconduct” on the part of the employee. Employees should be particularly aware of claims of misconduct based on violation of company policy because there is the added element of “reasonableness.” According to Labor Code, Section 2856,

An employee shall substantially comply with all the directions of his or
her employer concerning the service on which he or she is engaged, except
where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.

“Disobedience of a lawful and reasonable instruction of the employer, related to the employer’s business, is misconduct.” (Precedent Decision P-B-190) The reasonableness requirement was addressed in Precedent Decision P-B-183. In that case, the employer demanded that the claimant stop discussing the possibility of opening his own business. The claimant refused and was discharged. The Appeals Board held that the employer’s demands were unreasonable as there was no evidence the claimant’s discussions disturbed the employer’s business; accordingly, the claimant’s actions did not constitute misconduct.

If you believe you are entitled to unemployment benefits, do not assume that an initial denial or contest by your employer is the final word. The time to appeal a decision of an administrative law judge is usually only a few days; therefore, it is in your best interest to contact a California labor law attorney as soon as possible. A knowledgeable attorney can provide an unbiased analysis of your situation and walk you through the entire process. Be aware that all testimony given an unemployment hearing can be used in other proceedings. If you have a possible claim for wrongful termination or personal injury, it is especially wise to prepare your testimony with counsel. Finally, do not forget to continue to file your weekly claim forms with the EDD while your appeal is being processed. If you are successful in court, you will only be compensated for those weeks in which you filed weekly claim forms.
 

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Whether by layoff, termination, or decision to explore greener pastures, leaving a job is a stressful and emotional time.  Making the right decisions and avoiding career damaging mistakes are critical.  Having represented the rights of well over eight hundred clients we have seen how powerful a little knowledge is and unfortunately how devastating ignorance can be.   Presented below  are the five critical steps you can take to protect your future. .  
 
Request a copy of your personnel file
 
Before your departure from the company, pay a visit to the human resources department and request a copy of your personnel file.  This file should include performance reviews, awards, contractual agreements and other items that may be beneficial to you in your future job search.  If your employer refuses to provide this information, remind them that you have a legal right to any documents that you have signed.  It is also wise to keep a copy of all company policies, employee manuals, and other data that is non-proprietary.  This information is critical in the event of a dispute involving your rights to unpaid overtime or for wrongful termination, etc.
 
Collect recommendations and references
 
Prior to your departure, request a written letter of recommendation from your immediate supervisor or other higher ranking individual.  Also obtain the name and number of a person in the company who prospective employers may contact for a positive reference.  Remember that anyone who has witnessed your work and thinks you do a good job can serve as a reference, including supervisors, managers, colleagues, co-workers, and subordinates. Be sure to obtain their personal contact information including home address, phone number, and email so you can reach them in the event that that they leave the company.   If you offer to serve as a reference for them and provide your contact information, they may be more willing to reciprocate. 
 
Keep in mind  that even individuals outside of your company may serve as references.  Perhaps the most important word to remember is “network.”  Take a few minutes to call or email people in your industry with whom you’ve established a good working relationship.   As Laura T. Coffey points out, the more contacts you have in the industry, the better your chance of finding work quickly.    
 
Protect your benefit plans
 
Obtain a copy of your employer’s health insurance policy and find out what it covers.  It is possible that you may continue coverage under your existing plan for a few months pursuant to COBRA, but this is likely to be costly.  It is wise to look into the cost of personal health insurance and shop around for the best price.  Also access your retirement plan.  You may be able to take your pension as a lump sum or transfer your money to an individual retirement account (IRA).  
 
 
Remove all personal items 
 
If you anticipate leaving your job, begin removing all personal items from your office.  At the time of termination, you may be escorted off the premises without time to pack your belongings.  Someone may do this for you later, but this is not guaranteed.  Don’t forget to check your computer.  If you have created any personal files or installed software, copy and delete them.  Be careful not to take anything that may be considered proprietary, such as customer lists, proposals, financial reports, etc.  You certainly don’t want to begin your job search with accusations of theft or violation of contract.    

Evaluate your severance package and release
 
Although employers are not required to offer severance benefits, they may do so in order to smooth things over with exiting employees.  Severance benefits may include up to six months salary, extended health insurance coverage, payment for accrued sick days, and outplacement services, among others.  However, these benefits do not come cheap.  Employers will usually condition payment on the employee’s signature of a release that waives all claims against the employer.  Promises of non-disclosure and non-competition are often common.  You should never sign such a release without first talking to a labor law attorney. .  If you are owed any past wages for unpaid overtime or for any other reason you could easily lose those rights which could be substantial. These contracts are drafted for the sole benefit of the employer and are legally significant.  Therefore, it is important that you have a labor law attorney review the release before signing.  A knowledgeable labor law attorney will protect your rights and may be able to negotiate more favorable terms. 
 
If you have any questions or concerns about your employment rights upon leaving an employer, do not hesitate to an experienced California labor law attorney.  Some attorneys will review your situation without charge, in which case you can have peace of mind and protect your rights without any cost to you.

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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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While I do not have a crystal ball to determine the long range planned layoffs of companies in California, the California Worker Adjustment and Retraining Notification Act provides some help. The WARN Act requires certain employers of industrial or commercial facilities give affected employees at least 60 days advance written notice of a planned plant closing or mass layoff of 50 or more workers.

Below is a link to this database and a description of the WARN Act:
http://www.edd.ca.gov/Jobs_and_Training/Layoff_Services_WARN.htm#ListingofWARNNotices

California Labor Code Section 1403 provides for a possible civil penalty of $500 a day for each day of violation. Employees may receive back pay to be paid at employee’s final rate or 3 year average rate of compensation, whichever is higher. In addition, employer is liable for cost of any medical expenses incurred by employees that would have been covered under an employee benefit plan. The employer is liable for period of violation up to 60 days or one-half the number of days the employee was employed whichever period is smaller.

If you have been laid off and you feel that you were not given proper notification under the WARN Act, it is important to speak to a California labor law attorney to find out what your rights are.
 

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Good news is on the forefront. According to Reuters, the U.S. House of Representatives voted on September 22 to extend jobless benefits for those who risk exhausting them.

Idled workers are typically eligible for up to 26 weeks of payments to cover expenses as they look for another job. Some workers are now eligible for up to 79 weeks of unemployment benefits.

The extension of benefits bill, if passed, would extend benefits by 13 weeks in states where the unemployment rate is above 8.5 percent. This extension would include California’s unemployed, where the unemployment rate was 12.2 as of August 2009.

In California, unemployment benefits are granted in the event of layoff or downsizing, or other limited circumstances. If an employee simply quits a job, and there are no extenuating circumstances, i.e. documented harassment, documented violence in the workplace, it is likely that the employee will not be awarded unemployment benefits.

California Unemployment Insurance Code 1256, reads, inpart:

An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct connected with his or her most recentwork.
 

In addition, if an employee is terminated for willful misconduct, that employee may also be ineligible for unemployment benefits. I have seen on more than one occasion, an employer “blackball” an employee they wish to terminate in order to possibly avoid a potential wrongful termination lawsuit and unemployment insurance. 

Strategy:

1. If you are an employee, and believe you are being “railroaded” and on the way to being terminated or were terminated for what your employer deems “misconduct,” it is important to gather witness statements and other evidence to refute the employer’s contentions.   
2. You should have these witness statements and other evidence readily available for your hearing with the Employment Development Department.
3. Should you not win your unemployment insurance hearing, you do have the right to appeal, however appeals are difficult, and must be filed timely.

If you feel that you have experienced wrongful termination or feel you are the victim of discrimination, it is important to talk to a California labor law attorney  to find out what your options are. Keep in mind that there is a statute of limitations to file your claim and protect your rights.

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