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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5067
Experience:  Extensive experience representing employees and management
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THe HR head wrote to me yesterday offering to

Resolved Question:

THe HR head wrote to me yesterday offering to "reinstate" health insurance as the company still has not given me back pay. I filed with the CA Labor Board last week for wages, severance, vacation, expenses, unlawful deductions & waiting time penalties. Will accepting this offer of health insurance undermine my claim? Thank you!

Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello. Tina is offline. Would you like to wait for her, or would you prefer to have an answer immediately?
Customer: replied 1 year ago.

I'll wait - thank you.


 

Expert:  Wendy-Mod replied 1 year ago.
Hello,

I'm Wendy, and I’m a moderator for this topic. I sent Tina a message to follow up with you here, when she is back online. Unfortunately, she's away from the site for a while. Could I search for another professional to help you?

Thank you for your continued patience.

Best,
Wendy
Customer: replied 1 year ago.

Yes - please do. I will have to give a lot of background info to bring someone up to speed.

Expert:  Joseph replied 1 year ago.
Considering the above replies, I assume that you would like me to answer your question at this point?

I can look at your earlier questions and/or you can tell me the facts you feel I should know.
Customer: replied 1 year ago.

That would be great if you could look at all of my earlier postings -- obviously please ask any questions you need to.

Expert:  Joseph replied 1 year ago.
Hello Julie,

I had a chance to review your previous posts with Tina and can answer your question with the additional information I gained from your previous questions.

My goal is to provide you with excellent service.

No, accepting the offer of health insurance benefits will not undermine any of your other claims against your former employer for wages, severance, vacation, expenses, unlawful deductions & waiting time penalties.

You would only potentially waive any of these claims if you signed a 'compromise and release' agreement associated with some payment to you as a means of settling your outstanding claims.

Instead, if anything, reinstating your health insurance benefits may indicate some level of culpability on behalf of your employer (trying to make up for unpaid wages, canceling your health insurance, etc.) and would actually strengthen your claim for benefits.

The one thing I'd watch out for and make sure of is whether they are trying to reinstate you as an employee or not, since I noticed that you didn't receive an official notice that you were terminated from your employer as of your last communication with Tina. And as Tina correctly mentioned, you are only entitled to waiting time penalties of 30 days of wages if you were terminated, not if you are a current employee.

However, since you were left with no communication and had your health benefits canceled, reinstating your health benefits would more than likely be considered an attempt to rehire you as an employee (if it's considered anything) rather than trying to maintain that you were still an employee. Since you had not heard anything back from the company since your last day of employment (July 7th from the questions) your employer would definitely be considered to have effectively terminated the employment relationship by not communicating with you for a month while you were on 'unpaid leave.'

And, if no mention was made of your current employment situation with the company despite your many inquiries (for instance, an apology for the misunderstanding and statement that you are still an employee), it is definitely safe to assume that the offer of health insurance has no bearing on your employment status. (The same assumption would be made by the labor commissioner as well).

I hope the above information is helpful.

Please let me know if you have any follow up or clarifying questions regarding any of the above information.

Thanks and best of luck!
Customer: replied 1 year ago.

I very much appreciate your thoughtful response. I wrote a long timeline to you but it seems to have gotten lost. When I wrote the demand letter I referenced a 7/5 date as the "effective termination" date" (because I have never been formally terminated and that was my last day of work.) On 8/5 I received a letter from ADP saying that I was no longer on health insurance and that my "end of employment" was 7/5 and I had to start making COBRA payments. I wrote to my co. and received an email from an HR flunky saying that I had retroactively "voluntarily terminated" myself as of 7/5. I wrote back asking her to send all of my correspondence to an HR/legal professional. Then I got back a very conciliatory email from the head of HR offering to reinstate the health insurance - but still asserting that I had "requested COBRA" and that's what caused the misunderstanding. I never "requested COBRA" - on 7/25 I emailed asking what the "status of health insurance" was given that the last notification from the co. on 7/2 said that the co. was paying health insurance through the end of the month.


Question: I have already filed this claim with the CA Labor Board. Should I correct these 2 false assertions in writing (that I "voluntarily terminated" myself and "requested COBRA") or let it go and sort it out with the Labor Board?

Expert:  Joseph replied 1 year ago.
You can correct the misunderstandings, just to ensure that there is no confusion with your employer, but it isn't necessary for your claim with the labor board.

The statement that you 'voluntarily terminated' yourself was likely made to try to avoid paying you unemployment benefits, since your employer wouldn't have to pay you if you actually terminated the relationship. But that idea seems ludicrous, since you were reaching out to them about your employment status and payments and received no response back from them for nearly a month.

It wouldn't be necessary to correct this misunderstanding for the labor board, since regardless of who terminated the relationship, you're still due unpaid wages, penalties, and unpaid reimbursements for expenses.

But it is important to keep the letter to demonstrate that your employer terminated the employment relationship (not the other way around) in case your employer contests your unemployment benefits. And you may want to correct the misunderstanding to determine whether they will try to contest your unemployment benefits or not.

with the letter that you received from ADP stating that your effective termination date was 7/5/13 you won't have any trouble proving that you were terminated on that date by your employer.
Customer: replied 1 year ago.

OK - that was what I was hoping you would say. My only other concern -- I live in Rhode Island. Have always lived in Rhode Island and have always worked from home. Can that pose a problem with the CA Labor Board? (i.e. they only represent CA residents)? My employment contract is with a CA company and is under CA law.

Expert:  Joseph replied 1 year ago.
Yes, unfortunately, that could create some issues, since the claim normally would have to arise out of the State of California, or you would have to be a resident, in order for the state to have jurisdiction over the matter.

That said, the fact that the contract states that California law governs and that the employer is in California may allow the labor commissioner to assert jurisdiction over the matter even though the claim didn't arise out of California. Basically, the labor commissioner would have discretion over whether or not to consider the claim or decide that it would be better served with you filing a wage complaint in Rhode Island instead.

Just to cover your bases, while you await a hearing date for your wage claim in California, you may also want to file in Rhode Island, which you can do here:

http://www.dlt.ri.gov/ls/pdfs/complaintform_LS.pdf

I would recommend that you do so, since the California Supreme Court has previously held that California overtime laws only apply to work performed in California, not work performed in other states even if it was exclusively for a California company. The same would probably be held true for other provisions of the California Labor Code if your employer tries to challenge your wage claim on those grounds.

See here:

http://cawageandhourlaw.blogspot.com/2011/07/sullivan-v-oracle-non-california.html

Joseph, Lawyer
Satisfied Customers: 5067
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Expert:  Joseph replied 1 year ago.
Hello Julie,

Thank you for your positive rating of my service and the extremely generous bonus! It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should you have future legal questions.

Please request me directly by placing “to Joseph” at the beginning of your question and/or requesting me directly in California Employment Law.

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

Thanks again and best of luck,

Joseph

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