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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7162
Experience:  Significant experience in all areas of employment law.
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Hello. I live in California and was terminated 7/26/2013 via

Customer Question

Hello. I live in California and was terminated 7/26/2013 via phone call while on a paid vacation out of state. Since then, I have not received a paycheck. Payroll processed a check 7/31/2013 scheduled to arrive 8/3/2013 via direct deposit to my bank. This will include pay up until 8/1/2013 as well as CA Penalty Pay, but in the interim, I have not made a payment to my mortgage company. I am in the final stages of an approved loan modification, which I have just defaulted on due to lack of payment. In short, I lost $165.51/mo deduction for the next 27.7 years because I couldn't pay. If I accept direct deposit tomorrow, do I limit my employers liability in this situation? And if not, how quickly will this be resolved? Sorry so late and lengthy. Thanks.
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. I am very sorry to hear you were let go and not paid in a timely fashion, especially given the effect this had on your ability to secure a loan modification.

By accepting a direct deposit that includes penalties, one would not ordinarily be waiving their right to take additional legal action. Direct deposit, by its very nature is unilateral and does not require the express consent of the account owner to take place. Even if the account owner affirmatively accepted the payment, without signing a formal release indicating that payment was in exchange for a waiver of ALL legal claims, it would be extremely difficult for the employer to argue that the employee was now precluding from further action.

Although an individual in your circumstance would likely not be waiving your rights to take additional action by accepting a direct deposit that includes penalties, I must be candid and tell you that an additional claim for your consequential damages (failure to secure your loan modification and the financial repercussions that will have for you) would be extremely unlikely to succeed. This is because any claim for consequential damages arising from breach of contract (the contract here being your employer's agreement to pay your wages) requires the consequential damages to be foreseeable.

It's simply not foreseeable that by being a few days late in paying you that the delay would result in a deficiency in your bank account which would cause you to miss a mortgage payment which would cause you to lose out on a loan modification. If that sort of damage were recoverable, the liability for employers would be near limitless.

Therefore, while accepting a direct deposit would not legally preclude an individual in your circumstance from taking additional action, a claim for consequential damages would not be successful on the basis of the facts you have described and would most likely be a waste of time and money for you to pursue.

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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 1 year ago.


Define forseeable?


 


If the law is broken, resulting circumstances are not considered?


 


Employer has been made aware of ongoing loan modification process several times throughout the last 26mos and also during the discussion for review of seperation, which included my direct reports' boss (bosses' boss) and HR Consultant on 7/12/2013. They were offerd this information again on 7/30/2013 and they could have resolved it on the spot, in person.


 


Coming from someone who cannot possibly understand what living paycheck to paycheck is like in this day and age, I find your answer offensive and rude. Sorry I wasted my time or didn't explain it right. There should be no variables - a gross and sloppy termination process resulted in my massive financial loss.

Customer: replied 1 year ago.


And is it legal to fire someone over the phone? Had this been done correctly, I would have been met with, issued a check that day and walked out, with my box and none of this would have ever happened. But instead, I am picking up piece after piece after piece.


 


I was very, very ill during my pregnancy in 2011. This was the purpose of the modification, so a backup/crisis fund doesn't exist for me. I have been making payments successfully and paid bills in full while only receiving 40-60% of my pay. I can't be expected to consider my empployer might just break the law, so I better have a backup plan! Seriously?

Expert:  Patrick, Esq. replied 1 year ago.
I am sorry that you interpretted my effort to provide you with an honest answer as being offensive and rude. That certainly was not my intent.

Please understand that I do not control the law and I have no ulterior motivations here. The reality is simply that domino effect damages claims fair extremely poorly in court. Even with the additional facts you now supply, there is a strong public policy against permitting a claimant to recover for this sort of harm.

Certainly, you can still pursue a claim, but you will be investing thousands of dollars into litigation that will in all liklihood leave you with less money that what you started with. Again, I am sorry I have to be the bearer of bad news, but please try to understand where I am coming from here. I am not trying to be disrespectful to your predicament, nor is your frustration something I am incapable of relating to.

If I can provide you with any additional information, please let me know.

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