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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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I had been working for 3 and 1/2 years for the same employer.

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I had been working for 3 and 1/2 years for the same employer. Full time the first two years,part time for one year and full time again for the last 4months (10/2011 to 01/2012). At the end of January I was asked to take some time off (4 weeks )without pay for lack of work. When I came back to work as scheduled,they sent me back home saying that I was on call for an undetermined period.I sent an email to my direct supervisor to ask him to either get me back to work or laid-off me.In case he would go with the second solution,I asked him to pay me the few days of vacation due and 2 weeks of notice (I told him I was willing to do my two weeks if necessary). It was a week ago and I never got any answer.I have the filling ,they will play dead and do not lay me off but keep me out of work.(one of the employee has been in the same situation and she was called back to work after almost two years.) I did applied for unemployment yesterday because I can't
stay without money. My question is to know if I'm entitled to these two weeks notices on top of my vacations and, eventually the action I should take if any.For your information I do not have any contract with that employer.

Thank you for your answer

Alain Labbe
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.

Thank you for entrusting me to answer your question.

Title 22, Section 1326-2(b) of the Unemployment Insurance Code provides that "Any person who is an unemployed individual, as defined in Sections 1252 or 1279.5 of the code, may file a new claim. "

"Unemployed" is defined in Unemployment Insurance Code Section 1252(a):

An individual is unemployed in any week in which he or she meets any of the following conditions:

- Any week during which he or she performs no services and with respect to which no wages are payable to him or her.

- Any week of less than full-time work, if the wages payable to him or her with respect to the week, when reduced by twenty-five dollars ($25) or 25 percent of the wages payable, whichever is greater, do not equal or exceed his or her weekly benefit amount.

-Any week for which, except for the requirements of (serving a waiting period prior to first payment), he or she would be eligible for benefits (reduced on a daily basis for disability).

-Any week during which he or she performs full-time work for five days as a juror, or as a witness under subpoena.

Thus, you do not need a formal "termination notice" from your employer to collect benefits, you simply need to demonstrate a lack of work.

Labor Code section 201 requires that an employer pay an employee all outstanding wages upon his or her termination. Accrued vacation days are a "wage" for this purpose and therefore must be paid immediately upon termination. Willfully failing to make such payment will result in the imposition of a penalty against the employer.

The problem here is that you have not received formal notice of termination. However, the Department of Labor Standards Enforcement would likely regard your termination date as being the last day on which you worked. Thus, your vacation is presently due and payable.

You would not, unfortunately, be entitled to a final two weeks of pay, even if you offered to work that time. An employer is free not to provide severance and need not pay an employee for hours that they offer to work, only for those hours actually worked.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.
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