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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7017
Experience:  Significant experience in all areas of employment law.
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Three days ago, I gave my two week notice to quit as a store

Customer Question

Three days ago, I gave my two week notice to quit as a store manager for a Fortune 50 retailer, and let them know I am going to a competitor. It is normal in those cases for them to pay you out your two weeks, and any severance, and let you go immediately. Today I received a bill for 20% of my relocation costs, from my move two years ago. I signed the relocation agreement on 2/1/11, and gave my notice on 2/4/13. The repayment amount for leaving the company anywhere from 640 days to 730 days from relocation is 20%. They are starting the clock on my relocation at 2/27/2011, which means my notice was given after 709 days from that date, but 732 days from when I signed agreement. The date of the 27th may or may not have been on the document when I signed it, it is handwritten into the form. My question is, can I use the date of 2/1/11 and tell them to get lost? Also, no one has told me officially that I am not with the company anymore, and I have not gotten my final check. I was simply told by my assistant manager that my district manager wanted me to bring in my keys. Or, should I rescind my 2 week notice tomorrow, and submit a doctors note and be on sick leave that would take me to 732 days past 2/27/11? I don't need to start at my new job till 3/1/13
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to answer your question.

Does your agreement state anywhere on it that the 27th would be the date on which the 730 days would start for the purpose of determining liability for relocation costs? If so, does your copy of the agreement contain this date?

Also, does the agreement define the term "leave" as it pertains to "leaving the company"? What I'm interested in knowing is whether "leave" includes being fired within the 730 day window or only voluntarily quitting within that window of time.

I very much look forward to assisting you regarding this matter.

Customer: replied 1 year ago.

The agreement covers leaving the company voluntarily, or involuntarily (excepting reduction in workforce or elimination of position)


The reimbursement agreement was signed on 2/1/11, but at the top there is a blank space for "effective date of relocation/employment" and it is written in 2-27-11. I don't believe that was filled in when I signed it on the first.


The breakdown for percentage of payback does refer to "effective date of relocation/employment"


My reasoning behind possibly rescinding notice and being sick for two weeks is that at the least it might muddy the waters as far as what date they could actually hold me to. The 20% is $3500. I basically want to write a letter stating I intend to fight this charge legally, and I think they will just close it.


Also, while this was technically a voluntary move, I was in a remote geographic area that had 5 of our stores. Six months from the time of my move, we were closing two of the older stores and opening a new one. Therefore, one of the local managers was going to HAVE to move out of the area. As the least senior manager, who was told I would NOT be getting the new store, it was intimated I would have to relocate. Does this help me at all?


Customer: replied 1 year ago.

Oh I forgot to add the repayment amount is 0 after 730 days


Expert:  Patrick, Esq. replied 1 year ago.

Kevin,

Thank you very much for your reply. Unfortunately, I must tell you that I don't see your position as being particularly strong here.

The fact is your agreement states that the effective date of relocation/employment is the 27th. The argument that this date was subsequently written in doesn't seem very persuasive. Even if that was the case, why would the date of "employment/relocation" ever have been construed as the date on which you signed, if you didn't start work or relocate on that day? The common meaning of the term "relocation/employment" (which courts will default to in the absence of a clear meaning assigned by the parties to the contract) would be the date you actually moved or started work.

So, in order for the argument to succeed, you would have to prove not only that this date was somehow written in after you signed the agreement and without your knowledge or consent, but also that your understanding of the term "relocated/employment" was something other than the common meaning of those words.

When you first asked the question, I thought that the repayment clause took effect only if you quit within the first 730 days. If that were the case, this whole mess could be avoided by simply withdrawing your notice of intent to quit and pushing things back, as your employment has not yet officially ended. However, if the repayment clause still takes effect even if you are fired, there is really no way around it because your employer can let you go even if you rescind your notice.

An employee cannot simply take sick days to avoid being fired. An employer has a legal right to limit the use of paid sick days to only those days on which an employee is actually sick and may request reasonable medical verification. So, this cannot be used as a delay tactic to avoid having your employment terminated prior to 730 days.

The only argument I see having any traction here is the last one you raised--that your position was "in the process of being eliminated." However, the fact remains that your position had not yet been eliminated. You could conceivably argue that elimination of your position was eminent and that you are exempt from repayment pursuant to that clause in your contract, but this is still questionable at best.

If I am being completely honest, which I assume you will appreciate, I don't see too many ways to spin this. Your contract starts the 730 days beginning on the date of relocation/employment, and your contract states that date is the 27th. Even if you argued that this date was somehow marked in without your knowledge or agreement (quite a difficult thing to prove), you would then be tasked with proving that your interpretation fo this date as the date you signed the agreement was reasonable. I think you'd be hard pressed to find a judge or jury to say that it was.

Since the 730 day provision does not apply if your termination ends due to elimination of your position, your strongest (though still rather weak) argument is that you quit due to the imminent elimination of your position. Lastly, you may cause your employer some pause if you characterize this repayment provision as an unlawful deduction from wages, though provisions providing for repayment of location costs have generally been upheld by courts as legal.

Again, I am truly sorry that I cannot provide more positive news here, but I trust that you will nonetheless still find value in the information I have provided above.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes to you.

Expert:  Patrick, Esq. replied 1 year ago.

Kevin,

I have not heard back from you and was just wondering if I can provide you with any further assistance. If so, I am happy to continue helping. If I have answered your question, I would be very grateful for a positive rating of my service, as that is the only way I receive any credit for my answers.

Kindest regards.

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