Employment

Are Fired Employees Eligible for a Severance Package?

are-fired-employees-eligible-for-a-severance-packageSeverance usually takes the form of pay and/or benefits that an employee receives once s/he leaves a company. Often severance takes the form of pay for unused vacation time, compensation for a late notice period, and some form of retirement benefit.

Severance Pay in California.  Are employers in California, though, required to make severance payments? Well, California calls severance pay “separation pay” or “termination pay” and typically doesn’t require it from employers.

By whichever name it takes, severance pay is not completely guaranteed in California, but you could receive some compensation if you were, for instance, involved in a mass layoff or signed a contract guaranteeing you severance pay.

Who’s Entitled to Severance?  Severance compensation is sometimes given to employees in California who have been terminated or who have decided to leave a company after years of gainful employment.

In many cases severance pay acts as a life raft to keep California’s recently unemployed afloat financially. The additional months of income can help someone recently unemployed make utility, mortgage and other kinds of basic payments.

As a general rule of thumb, though, an employer in California is not legally obligated to give his or her employees severance packages. The exception to this rule would be an employer-employee contract that stipulated a severance package.

Likelihood of Receiving Severance.  More often than not, severance packages are given to employees based on the employer’s capacity to make future severance payments.

Many employers, especially those running small businesses, simply cannot make severance payments and, therefore, omit severance packages from employment contracts.

Two other factors that may determine your likelihood of receiving a severance package in California are employment history and the way in which you left the company.

If you’ve been with the company for fifteen years, as opposed to two years, you’re more likely to receive a severance package.

Additionally, if you left the company and your employer on good terms – as opposed to a termination because of some workplace negligence – then you’re also more likely to get a severance package from your employer.

That said, employers in California are usually not legally obligated to make severance payments.

When Will You Receive Severance?  If your employer worked in a severance package into the employment contract that you signed with your employer, perhaps as an incentive to take the job in the first place, then you are legally entitled to receive severance.

In California, as in other states, severance payments could be much more than simply the employer thanking the employee for years of hard work.

Severance can, in some instances, preclude an employee from working with a company’s economic competitor or prevent a terminated employee from receiving unemployment compensation.

WARN and Compensation in California.  The Worker Adjustment and Retraining Notification Act (WARN) is a labor law in the United States that helps to protect terminated employees and their families from mass layoffs.

Specifically, an employer must provide 60 calendar days or more of advance notice to employees before mass terminations or disruption of plant operations, provided the employer employs more than 100 individuals.

In the state of California, if certain employers fail to give 60 calendar days of advanced notice, then California ex-employees may actually be legally entitled to receive severance payments for months after employment.

Summing Up California Severance.  In most cases severance is determined by how long the employer has been with the company and the employers financial ability to make severance payments.

An employer in California is usually not required to provide severance. Exceptions are mass layoffs protected under WARN and employment contracts that stipulate severance payments upfront.

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Employment

Why Would a Business Need an Employee Handbook?

why-would-a-business-need-an-employee-handbookDoes Your Business Need An Employee Handbook?

In today’s society, it is important to understand that any dispute can lead to potential litigation. Employers and employees are ending up in litigation procedures at an ever increasing rate, meaning it should be in the utmost of interest to employers that they protect themselves by using every resource and tool possible to their advantage.

A well-defined employee handbook is one of these resources that can aid an employer against any claims brought against them. An employee handbook is not just a company policy overview; it can be used as a tool to prevent litigation issues that may arise. This manual is your handwritten policy of procedures and it serves to give employees a better understanding of your company policies by:

• Giving employees a better understanding of their rights and responsibilities
• Providing consistent employment relationships
• Setting forth a philosophy on the employers part by maintaining a union free environment
• Giving your employees the comfort and peace of mind knowing that they are working in a professional environment

What Exactly Is An Employee Handbook?

An employee handbook is your written documentation which provides an overview and explanation of your company policies and procedures. This document is for both existing employees and new ones hired over time. They do not need to be long and over-explained, but they should contain certain information, such as:

• Equal employer opportunity statement
• At-will employment disclaimer
• Benefits information
• Anti-harassment policies

Your company’s employee handbook is a human resources tool that essentially sets all the standards that your employees must follow. Management can also refer to this guide when situations arise with employees who violate workplace policies and guidelines set forth in the manual. Management must be trained properly in the manuals contents so that they are able to deal with any situations that may come from workplace related issues.

Is Your Business Too Small To Have An Employee Handbook?

Some employers think that just because they only have a handful of employees, that they don’t need to institute an employee handbook. They think that simply telling everyone the rules will be enough. This could not be further from the truth. Without written documentation of expectations, you could put yourself in a situation where you have nothing to back up your enforcement rules. Many states require that an employer have a handbook in place if they even have only one employee. This is to protect the rights of an employer in the event a litigation battle comes about.

You can protect yourself legally when it comes to intellectual property, copyright issues and trademarks associated with your company. An employee handbook is not just a pamphlet on company rules, it is an invaluable tool used to protect everyone involved within the organization.

What Should You Put In Your Employee Handbook?

As mentioned above, there are a few key elements that you will want to make sure are included when you write your own handbook. A very well written and thought out manual will make sure you have all bases covered to protect yourself, while giving your employees a better understanding of what is expected of them. A poorly written and quickly thrown together manual, however, could have devastating consequences to you and your company should any case ever be brought to litigation. If you do not choose your words carefully, your handbook could be misconstrued, which could leave you vulnerable when trying to defend yourself against accusations. Arm yourself with the best resource of all and implement a well-crafted employee handbook.

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FMLA

What is the Family and Medical Leave Act?

what-is-the-family-and-medical-leave-actThe Family and Medical Leave Act (FMLA) gives you up to 12 weeks unpaid leave to help an immediate family member with a serious health condition. The Act, which became law in 1993, also allows you to use that time to take 12 weeks from work to:

  • Resolve your own serious health condition
  • Give birth
  • Bond with your newborn
  • Bond with your adopted child
  • Bond with your new foster child

You are allowed to take up to 26 weeks of unpaid leave in a 12-month time frame when your family member is in the military. This gives you the right to care for a covered service member who has a serious health problem. The service member must be in the following category:

  • Spouse
  • Parent
  • Immediate blood relative
  • Child

What is an Immediate Family Member under FMLA?

The term “immediate family member” is defined by each state. Federal law defines a family member in this category as a spouse, parent or child. However, some states include a domestic partner, grandparent, sibling and mother or father-in-law.

Required Proof Needed to Take Leave under FMLA

Proof of a serious medical condition is not included in the law. In other words, you are not required to show proof that you have to take medical leave. However, your employer is allowed to ask you for proof such as certification from your or your family member’s health care provider. Your employer may do so either when you make the request or five business days after the request.

If your employer does ask you for proof, you have 15 calendar days to provide the documentation. Your employer may also contact the health care provider to obtain any clarification or authentication. You employer is not allow to ask any personal questions regarding your medical leave. They may only obtain the needed documentation.

Should You Use Your Paid or FMLA Unpaid Leave First?

The answer to that question can only be answered by your employer. Many employers require workers to use their paid leave prior to requesting FMLA leave. If your employer does not, it may still make sense to use paid time off first. After all, losing income can create a financial burden. If you decide to take your paid leave first, you are still entitled to take FMLA leave after that.

Are You Considered an Eligible Employee?

Only eligible employees are allowed to use FMLA unpaid leave. The law defines an eligible employee as one who:

  • Works at least 1,200 hours in a 12-month period.
  • Has worked for his or her employer at least 12 months prior to asking for the unpaid leave.

If you want to know whether you are included in this category or not, you will need to check with your company’s human resource department. You want to make sure you are an eligible employee before making the request.

The purpose of the FMLA is to ensure that an employee does not have to choose between work and family. You can receive unpaid time off from work when you have a medical emergency in your family or need to bond with a child. Before requesting time off under the FMLA, you want to check with your employer to make sure that you are an eligible employee.

If you feel you’ve met the criteria, but are still having issues getting your benefits, you may wish to retain the support of an employment attorney.

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Employment, Uncategorized

Should I be Paid by My Employer While on Jury Duty?

should-i-be-paid-by-my-employer-while-on-jury-dutyOne of the most important parts of our judicial system in the United States is the right to be tried by a jury of your peers. Those peers are selected from a pool of eligible jurors, usually from the area that the case is being heard. At one time they were selected from the list of registered voters. However, today the list is compiled from people who file taxes, have driver’s licenses, bought a house, and many other ways. If you are a citizen in the US, you can be called to serve jury duty. Juries are usually made up of six to twelve jurors.

The jurors who are called upon to serve jury duty are required by law to serve for however long the trial takes. While this is one of most important civic duties a person can participate in, it can be difficult for a juror to put their life on hold while participating. Their families and their jobs can suffer. There are many people who try to avoid serving on jury due to this disruption. One of the biggest concerns is loss of pay. While the Federal government does not have any specific law handling pay during jury duty, jury duty is somewhat covered by the Fair Labor Standards Act (FLSA) ensuring that an employee cannot be fired for serving jury duty. The matter of pay during that service is covered by State law and each state has different laws for handling this issue.

There are currently seven states that require employers to pay employees – Alabama, Colorado, Connecticut, Massachusetts, Nebraska, New York and Tennessee. There are also eleven states who do not allow employers to require employees to take any kind of paid leave, such as sick leave or paid vacation time, while serving jury duty. But each state has different specifics for jury duty. Some of these laws include:

  • Payment of up to a specific amount for a set number of days
  • Payment of full time wages during absence
  • Requires unpaid leave for the duration of jury duty
  • Prohibits penalizing an employee for time spent in jury duty
  • Employee must retain the same position as when they left for jury duty

While the laws vary from state to state, most protect the employee from being penalized for participating. However, the majority of states do not require the employer to provide any type of financial compensation for time spent on jury duty. The states that do require employer payment to the juror, put limitations on it. Most only pay for three to five days of jury duty participation. Also, the amount is limited, such as no more than $50.00 per day. These requirements are also usually limited only to full time employees. So, a part time employee who gets called to jury duty would not be eligible for this benefit.

Serving jury duty is an important civic service, the small amount that the courts pay to those who participate on the jury does not usually make up the loss in pay. With so few states requiring employers to pay wages to employees on jury duty, it is no wonder so many are hesitant to take part in jury duty. It is not unheard of for cases to drag on for much longer than the jury members can afford to lose. While they are assured of having their jobs when they return, the financial burden may be tougher to overcome.

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Workplace Surveillance

Internet Use in the Workplace

The American Civil Liberties Union (ACLU) claims that many of our rights are poorly protected when we enter the workplace. In fact, the ACLU claims that privacy issues in the workplace are the number one complaint that they receive from people all around the country.

Size of the Problem

A study that polled over 500 companies around the US found that half of employers disciplined their employees at some point for inappropriate use of the internet.

Inappropriate use of the internet could include doling out threats to a superior at work, putting off work and chatting with friends online or watching explicit material (e.g., pornography) instead of working.

These kinds of illicit workplace activities are detected using proxy servers and standard web monitoring.

Is Workplace Surveillance Legal? 

So what does the law say with respect to workplace surveillance? Many employers understandably want to have a video recording of the workplace just in case a theft or outbreak occurs during work hours. Some bosses, however, predictably use these recordings to snoop on their employees and make sure they’re doing what’s expected of them. Is this legal?

As far as this kind of video recording goes, it should be legal. As long as the employer has a reasonable need to film (e.g., catch theft), and the area that’s being filmed is public and employees know that they’re being filmed, then the surveillance is likely within the bounds of the law.

Although state laws about video surveillance in the workplace vary, the courts usually weigh the need of the employer to conduct the surveillance against the employee’s privacy expectations. Having said that, employers are typically not allowed to film union meetings in any context.

Workplace Privacy and E-Mails 

Many employees want to know if their boss has the legal right to monitor their e-mails. If the e-mail is sent from work, then it’s typically legal for your boss to read it. The catch is that the employer must have a legitimate business rationale behind looking at his employee’s emails.

You actually have fewer genuine rights in the workplace than you do in your private life. The reasoning behind having fewer rights in the workplace works out like this in practice – the workplace is owned by the employer and the employee, therefore, does not have the expectation of privacy in these employer-owned areas.

Just as an employer can legally rifle through your work desk or locker, an employer can check up on the files that you’ve downloaded onto your hard drive at work or look at your work computer’s internet browsing history. The employer typically owns the computer, hardware and networking devices at the workplace, so it’s the employer’s legal right to search your work computer.

Electronic Communications Privacy Act 

Employers are understandably concerned with their employees’ productivity, bandwidth use or possible infringement of the company’s proprietary data.

Employers are also concerned with things like malware and viruses getting onto the work network. For all of these reasons, and the fact that your boss might share some liability if you make threats or engage in sexual harassment via email from a work computer, your boss probably monitors your search and download history.

The Electronic Communications Privacy Act says that a computer furnished by the employer, and used by employees in the workplace, remains the employer’s property. This means that employers are generally legally allowed to search your computer or internet usage whenever they want. Should you believe your privacy has been unfairly breached, you may wish to retain the services of an employment lawyer.

To date, only Delaware and Connecticut force employers to tell employees when their emails are being looked at by a superior.

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Employment

Wrongful Termination

wrongful-termination Everything you need to know about wrongful termination will take a few minutes to learn, and could be immensely helpful. If you are wrongfully terminated, you have certain rights, and a judgment in your favor will have one or more benefits depending on the laws of your state and the nature of the wrongful termination.

What is Wrongful Termination?

First, you need to establish that you were wrongfully terminated. You may believe that you have an inherent right to work for the company, but the truth is that most states adhere to what is referred to as an At-Will Clause. What this means is that employers and employees have the right to terminate employment at will, without providing for a due cause or allowing for severance or other post-termination factors. There are 9 states which do not have an At-will Clause:

  • Alabama
  • Florida (allows for only three exceptions)
  • Georgia
  • Illinois
  • Louisiana
  • Maine
  • Nebraska
  • New York
  • Rhode Island

If you are terminated for an illegal reason, you need to identify that cause. There are not many causes available, and it will be up to you to provide evidence that such an infraction occurred. With few exceptions, the causes are:

Breach of contract – If you have an employment contract, either verbal or written, or if the company has an employee handbook which states or infers that a contract exists, you can only be terminated under the provisions of the contract.

Discrimination – Under the regulations of the Equal Employment Opportunity Commission, EEOC, you cannot be discharged for race, creed, age, or gender bias.

Sexual harassment – Any form of sexual harassment in the workplace is prohibited. Performing such harassment is grounds for termination, reporting it or being victimized by it is not.

Violation of state or federal labor laws – This provision can take many forms, including firing an employee who is on leave for reasons allowed under the law, such as a medical emergency. Other labor laws are designed to protect those who work overtime.

Retaliatory firing – You cannot be fired for refusing to perform an illegal act, even when ordered to do so. Likewise, you cannot be terminated for reporting an employer who permits, requests, or encourages illegal activity, including violating OSHA regulations.

How to Respond to Wrongful Termination

If you are wrongfully terminated for any of these reasons, you need to document the infraction to the best of your ability. This includes acquiring copies of pay records, collecting witness accounts, or providing other proof. You may have as little as 90 days to get the complaint filed, so proceed accordingly.

Do not lose your temper with the employer, make threats, or perform unprofessional actions. If you have been terminated, get witness testimony outside of the workplace. Do not re-enter the workplace once you have been asked to leave.

Once you have collected the proof, file a complaint with the EEOC. The commission will examine the evidence provided and decide whether a wrongful termination case exists. If the EEOC rules in your favor, you may be eligible for lost wages, job reinstatement, and any job benefits that were denied.

If the EEOC rules in favor of the employer, you have the right to file a civil suit against the employer. In some cases, this suit can be filed in tandem with the EEOC investigation, but it should usually be reserved as a final attempt to secure justice. Filing a civil suit while an EEOC investigation is in progress could potentially damage both cases.

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Parental Leave

The Rules of Paternity Leave

the-rules-of-paternity-leaveAs a male worker, you may take time off work if the Family and Medical Leave Act (FMLA) covers your employer and if you are eligible for the time off. This kind of leave is sometimes referred to as “paternity leave.” According to a survey by Monster.com, about 60 percent of new fathers take advantage of the FMLA’s paternity leave benefit.  If you are eligible for paternity leave, then your employer must allow you take up to 12 weeks of leave within a 12-month period. Note that this is unpaid leave and must be taken within a year of your child’s birth. This also applies if you have adopted a child; you may take the same amount of time within one year of the child being placed with you. Any employer that offers maternity leave must make paternity leave available to their male employees as well or they will be liable for sex discrimination.

Who is Eligible for Paternity Leave?
If you work for a company with fewer than 50 employees, you are automatically ineligible for paternity leave under federal law. Also ineligible are workers whose time at work totals under 1,250 hours or who have been employed for less than one year. Eligible workers include state, local and federal employees. If both you and your spouse work for the same employer, you should note that the mandated 12-week leave will be split between the two of you.

New Jersey, California and Washington state are the only states with laws that provide paid paternity leave. If you live in California, you may collect up to 55 percent of your salary for no longer than six weeks; in New Jersey you may collect 66 percent over six weeks and in Washington state, you get $250 for up to five weeks.

Why Some Men Avoid Taking Paternity Leave
Many of those who fail to take their paternity leave cite their fear of repercussions from their employer as the reason why. Some workplace cultures may attach a stigma to men who take time off to help care for a newborn; these men may be seen as being less than committed to their jobs. Another reason is that you may not get your old job when you get back from your FMLA leave. Yes, the law does mandate that employers provide you with work under the same conditions as your old job (meaning, the same salary and benefits) but they do not have to return you to the same position.

Some employers offer other benefits that go beyond the FMLA paternity leave, including paid paternity leave. Note that they are under no legal obligation to provide you with this paid time off. If your employer does not provide paid leave, you may be able to substitute vacation days for a part of your FMLA leave. For more detailed information on your paternity leave rights, consult the Department of Labor’s website or talk to a lawyer who specializes in FMLA law.

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