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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4864
Experience:  Extensive experience representing employees and management
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Hi -- you were so helpful on my last question I wanted to ask

Customer Question

Hi -- you were so helpful on my last question I wanted to ask another.

The head legal counsel just wrote me an email "When did you resign/quit/be put on unpaid leave?
What is your situation/status."

Don't want to answer anything that compromises my claim for back wages, severance, vacation pay & 30 days of waiting time penalties.

To refresh: I was put on unpaid leave on Tuesday 7/2. Have not worked since then. Received email from immediate mgr on 7/26 saying that I was "no longer on the team". My email & cell phone were cut off on 7/31. Have not received any notice of termination or anything official. I have sent several emails asking for all amounts owed where I reference an "effective termination date" of 7/5.
Submitted: 11 months ago.
Category: California Employment Law
Expert:  Joseph replied 11 months ago.
Hello again, Julie,

Thank you for requesting me directly. I am happy that you found me so helpful on your last question and will be happy to address your current concern.

If you do choose to write back (which, of course, you are not obligated to), you should inform the legal counsel that you were placed on unpaid leave on July 2nd, and that you effective termination date (which you were told) was July 5th, as you were informed that you needed to start making COBRA payments as of that date.

You can also inform you that you have been notified that you were terminated on July 5th by someone else at the company, and that you were terminated without cause. (You could also mention the email from your manager on the 26nd that you were 'no longer on the team.')

Of course, he really should know all these things, but they seem to be attempting to try to make it seem that you were the moving party in the termination and/or that they weren't aware that you terminated your employment in order to avoid paying you unemployment benefits and/or the waiting time penalties. (Or it's substantial incompetence, or both).

You are also free to just not reply to the email or tell him that you are seeking legal representation (or considering doing so). He would then not be able to contact you any further, since it is illegal for an attorney to communicate with someone who is represented by counsel.

Hope this additional information is helpful.

As always, please let me know if you have any follow up or clarifying questions.

Thanks and best of luck!
Customer: replied 11 months ago.

Just to clarify -- the COBRA notice referenced 75 "end of employment" date. The HR person emailed that that date came from me -- not them. Because I referenced an "effective termination date" of 7/5 -- they took that to be a "voluntary termination".


 


Outside of discussion of that COBRA letter, no one from the company has ever said anything about termination or end of employment.

Expert:  Joseph replied 11 months ago.
Thanks for that clarification. (I did read that differently in the past when you mentioned it, and thought that you had been told you were terminated on the 5th, not that they were relying on you mentioning that as your effective termination date).

In that case, you should probably reference that you no longer being a part of the team on the 26th and/or having your email and cell phone being shut off on the 31st was when you believe that you were terminated by your employer. Unless your employer agreed that it terminated you on the 5th, then you're not going to be able to claim that date as an effective termination date, even if the employer didn't get back to you at that time.

It is more than reasonable though that being told that you were no longer 'part of the team' constituted you being terminated on the 26th.

Customer: replied 11 months ago.

I consulted Tina on that date -- and a Deputy Labor Commissioner. Both agreed on 7/5 because it was the last day I performed any work.


 


I think this legal counsel is involved because they want to make some kind of offer (she contacted me yesterday saying that they wanted some kind of "resolution" by next week -- which was improvement over last month when she emailed saying she didn't know why I was writing to her as she no longer worked for my co.)


 


So can a company really get away with no pay & no communication indefinitely? Can they argue that I am still employed?


 


 

Expert:  Joseph replied 11 months ago.
It would probably be considered the 5th, but I'm not sure what was told to you when you were placed on unpaid leave on the 2nd.

As far as unemployment goes, you would be able to file for unemployment benefits if you are put on unpaid leave for an indefinite period of time or for any longer than 2 weeks, so you can technically be considered to be unemployed at that time.

However, there are employees who are on FMLA leave or just unprotected leave for months without communicating with their employers, but normally that is due to them not initiating communication. (For instance, I had a recent customer who hadn't worked since December 2010 due to an injury at work, but was still an employee, and wanted to stay that way, 2 1/2 years later, with no pay).

So, in answer to your question, it is certainly possible for employees to be employed with no pay or communication with their employers for months at a time, but in your situation it does seem unlikely at this point, since your employer would be obligated to respond to your inquiries within a reasonable amount of time (few days or weeks at most).

For unemployment purposes, your termination date would be the last date you performed any work for your employer. So that should also then be considered your date as far as wage claims go, but it's definitely possible that your employer may argue you were still an employee and/or that they never intended to terminate you (as it appears that that's the current nature of their emails to you--e.g. asking you about what your status is, etc.).

But, as I did mention before, I think they could argue that you were still employed if you were placed on unpaid leave, and if they can prove that they intended to keep you on at that time on unpaid leave, or allege that they communicated something similar to you.

However, at the latest, your termination date for the wage claim should be the 26th, when you were told you were no longer a part of the team, so regardless it should amount to the same in damages for unpaid wages due to the waiting time penalties. (Unless, your employer suddenly pays you by Monday of next week).
Joseph, Lawyer
Satisfied Customers: 4864
Experience: Extensive experience representing employees and management
Joseph and 2 other California Employment Law Specialists are ready to help you
Expert:  Joseph replied 11 months ago.
Hello Julie,

Again, thank you for the extremely generous bonus and positive rating. I do hope that everything works out for you (with the wage claim and unemployment benefits), and I will be happy to address any of your questions or concerns down the line.

Thanks again and best of luck!

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