Happy Labor Day 2015 from SSVW
On Labor Day each year we celebrate the sacrifices and contributions of this country’s working people in growing our economy, creating and improving opportunities, and building our country’s economic strength. Decades of effort and pain produced the labor laws we have today – laws which force improvements in wages, benefits, and working conditions, establish job protection rights, and prohibit inequality or discrimination. But to be real, these laws must be enforced. We at SSVW remain committed to the effort we began 32 years ago – to be an advocate for working people in enforcing these laws.
Severance Agreements – Should You Sign?
It’s Friday afternoon and, whether you saw it coming or not, your supervisor tells you it’s your last day. Often, your supervisor adds the “good news” of a severance agreement to soften the blow. Across the desk comes a multi-page document with lots of paragraphs that look vaguely like a mortgage agreement. The severance pay and benefits part of the agreement may be your primary focus – and for good reason. You want some income “safety net” while you find another job. But the severance pay always comes with a “price” – i.e., what you “give” your employer to get that severance pay. Before you sign, make sure you know whether the severance deal your employer proposes is right for you.
- What legal claims might you be waiving and is the severance deal worth it?
Unless you have an automatic right to receive severance pay under a union or individual employment contract, a severance agreement allows an employer to “buy legal peace” with the employee being separated from employment. In other words, to get the severance pay/benefits, you must agree to release and waive any and all claims you may have related to your employment, even ones unknown to you at the time you sign. Should you?
If you have any reason to believe that your employer violated your employment rights during your employment or by terminating you, you should consult an attorney before signing the severance agreement/release. For example, are you right in believing your employer may have violated the law? Are the claims provable and, if so, are they likely to be worth more than the severance pay or other benefits being offered? Will the time, effort and expense of legal action to pursue those claims be worth it compared with the certainty the severance deal offers you? If it’s a “close call,” can the terms of the proposed severance deal be improved upon to your satisfaction so that protracted and costly litigation can be avoided? Assuming your employer follows the law in giving you notice and proper time to decide whether to sign the deal, it will be enforceable against you. So know before you sign.
- Is your employer asking too much from you in exchange for the severance pay or imposing unlawful restrictions on your right to pursue your occupation or career?
Certain claims cannot be waived. An employer may not require you to waive your right to apply for Unemployment or Workers’ Compensation benefits. Open or pre-existing Workers’ Compensation Claims may only be settled with judicial approval.
Right to seek re-employment with terminating employer. Just this year, the federal appellate court covering California held that a severance agreement which bars an employee from seeking future employment with the terminating employer, or its subsidiaries, is unenforceable if this term constitutes an unlawful restraint on the employee’s ability to engage in his or her chosen profession.
Right to pursue occupation or career without unfair restraint. An employer is entitled to protect its “trade secrets” — such as information technology or customer lists — and the law prohibits a former employee from “soliciting” a former employer’s customers. But the law also prohibits employers from restraining a person’s right to pursue an occupation or profession by going to work for a competitor. An announcement about your new employment situation, disseminated by postcard or other means to your former employer’s customers or clients, does not constitute unfair competition or solicitation. But you may need help from an attorney to assure your former employer recognizes and respects your rights.
- Have you received full payment for all monies due?
California’s Labor Code requires employers to pay a discharged employee all wages owed, including accrued vacation, immediately upon termination. “Wages” also include earned (prorated) bonuses, and commissions. With narrow exceptions, “sick leave” is not vested – an employee must use it or lose it. Be sure to check relevant offer letters, pay stubs and other employment records or employer handbooks to determine if you have received all compensation to which you are entitled.
A Final Cautionary Note About Your Employer’s Property
More often than not, employees come to possess work-related property such as customer lists, pricing or performance reports, lap tops, smart phones or other devices. With few exceptions, these materials belong to your employer and need to be returned upon separation. Make sure you verify (by pictures, an e-mail itemization or other means) what you returned, when and to whom. Even if you believe your employer has violated the law, do not engage in “self-help” remedies by copying or removing an employer’s property (e.g., electronic files). There are lawful means available later to access this evidence. Your use of a “self-help” remedy by taking property which belongs to your employer is never a good idea; it will only expose you to claims and remedies for theft, conversion, or unfair competition – and may diminish your credibility and the value of your legal claims.
Accidents happen. And all too often, accidents happen at work. A work injury can suddenly and dramatically alter the injured worker’s health, life, take-home pay, and ability to provide for a family. An employer’s insurance company may add to the injured worker’s woes by aggressive tactics in denying or delaying needed medical treatment. Even when an injured worker has overcome these challenges (usually with the help of a skilled attorney), a new challenge often awaits when he or she is medically ready to return to work. Ideally, an injured worker recovers and is released to return to work without restriction. But what if the doctor imposes permanent restrictions or limitations on the worker’s job-related activities?
Within 60 days after an injured worker (with an “accepted” work-related injury) becomes medically “permanent and stationary”, an employer must offer a return to regular, modified, or alternative work for at least 12 months. Otherwise, California’s Workers’ Compensation Statute entitles the injured worker to a “supplemental job displacement benefit.” This means a voucher worth up to $6,000 for job re-training. But the injured worker’s job may be far more valuable than this minimal “re-training” benefit. The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) both offer protections – just as they do when a worker or applicant for employment has a disability or medical condition which is not work-related. Critical questions arise:
- Can he or she still perform the essential functions of the job with or without accommodation?
- Is a reasonable accommodation available – e.g., modifying a work station or schedule or assigning the returning worker to a vacant position within his or her restrictions?
- Would the accommodation the employee needs impose an “undue hardship” on the operation of the business or would it pose a direct threat to the health or safety of the individual or others?
- Is the employer complying with the law by engaging in a good faith “interactive process” to determine what accommodation is needed, appropriate and reasonable?
- Or is the employer using the injury as an excuse to kick the injured worker to the curb (so to speak!) in violation of the law?
If you’ve suffered a work-related injury or have questions about your employer’s compliance with the disability protection laws, please contact our office for a no-cost evaluation of your situation. Call (619) 239-7200 or visit our website at www.mwaxlaw.com.
Meet SSVW’s Gloria Gentsch
Gloria began her career with our firm 13 years ago. Her primary focus is keeping our civil case files and file room in order and up to date so that our attorneys have ready access to every piece of paper they need to serve their clients. Gloria also cheerfully covers the reception desk when needed – and lends her positive attitude and know-how to any task needed to make us effective in serving our clients.
In her hours away from the office, Gloria enjoys reading, doing puzzles, and spending time with her grandkids. Besides her beloved Padres, Gloria is a regular fan at her grandson’s baseball games and enjoys taking her granddaughters to the movies and dinner.
Thank you Gloria for all you do and how you do it – let’s hope for another 13 years together!