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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5068
Experience:  Extensive experience representing employees and management
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I am part of a union that works for a major employer in the

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I am part of a union that works for a major employer in the state of California. In Oct 2012 our company hired 20 employees that are now at risk of being laid off. The employees were hired under contract terms that specified they would be paid a severance package after 6 months employment. In March 2013 a new contract was ratified with the union and one of the changes was to change the 6 month requirement for severance to 1 year. The contact WAS NOT retroactive and was approved with a date of March 2013. My understanding of state law is that the employees hired prior to March 2013 were hired under the provision that they would recieve severance after 6 months. The company is trying to state that the employees currently fall under the new contract of 1 year for severance pay and since they're being laid off at 11 months they will not get it. Which is right? Can a company forcefully retroact the terms of a contract? Can you site case law in California to support?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello Marty,

Please rate my previous answer to you positively, and I'll be happy to answer this question for you.

Or, I'll opt out if you choose not to (no one likes to work for free).

Thanks,

Joseph
Customer: replied 1 year ago.


Didn't realize I hadn't rated your previous answer. I took care of it.

Expert:  Joseph replied 1 year ago.
Thanks Martin,

I'll get back to you shortly.
Expert:  Joseph replied 1 year ago.
Hello Martin,

Can you tell me when the previous Collective Bargaining Agreement expired prior to the new one being ratified in March 2013?
Customer: replied 1 year ago.

Jan 2010

Customer: replied 1 year ago.


The previous agreement expired Nov 2012 but remained in effect until March 2013 because we failed to pass the contract that the company offered the first time around.

Expert:  Joseph replied 1 year ago.
Hello Martin,

Thank you for that clarification.

Courts have held that when there is a gap between a union contract expiring and a new one going into effect, the agreement can be made retroactive to when the the initial collective bargaining agreement expired.

See here:

https://bulk.resource.org/courts.gov/c/F2/302/302.F2d.808.8439_1.html

However, in the case that you've presented, the collective bargaining agreement was still in effect when the employees were hired in October of 2012, so that agreement would apply to them and they would be entitled to severance after six months of service.

If the employer fails to provide this, the employees who were hired in October 2012 and terminated prior to a year of service should file grievances with the union in order to receive the severance amount that they are entitled to under the provisions of the collective bargaining agreement that was in place when they were hired.

I hope the above information is helpful.

Please let me know if you have any follow up or clarifying questions as I want to ensure that you are completely satisfied with my service.

If not, please remember to rate my answer positively so I get paid for my work. (If I don’t receive a positive rating, I get nothing for assisting you, as I only receive payment for questions with positive ratings. Even if you made a deposit, it is still necessary to rate me positively for me to receive payment from your question).

Thanks and best of luck!



Customer: replied 1 year ago.


I definitely agree with your position on this but the problem is the company is laying off these individuals and without severance will cause undue hardship for many of them. I'm 100% certain that the grievance will be won (6 months later) but what good does the money do when the damage has already been done. Is there any specific case law that we could refer to that would back up our case that an employee hired under an old contract term for termination is "grandfathered" under those terms for termination. For example, our company in 2014 is changing to a new pension plan. For employees hired before 2014 they can elect to keep the old pension plan or change to the new one but anyone hired after 2014 is only going to get the new pension plan. This 100% complies with my argument that you can't force an employee into new contract terms without their consent and all employees are "grandfathered" under the terms they were hired under. If that makes sense. Just need some type of case law to back up my position, if there is any. Thanks again and if you find something I'll pay a nice tip too

Expert:  Joseph replied 1 year ago.
It's not that they would be grandfathered in. If the Collective Bargaining Agreement is not retroactive, and the original one was in place when the employees were hired, there is absolutely no need to prove this, since the old agreement was in effect when the employees were hired, and they were contractually obligated to receive severance under it after six months of service.

This is a simple principal of contract law, so case law is likely scarce (as there wouldn't have ever been any issue like that on appeal). (For instance, when California changed pensions for state employees, it did so only for new hires).

Honestly though, if the company has a position that they're not giving severance, regardless of what you can site in support, it's unlikely that they would change their position and decide to give out severance if they think there's any way to avoid their contractual obligations to do so. (This is based on my experience on the management side, seeing many frivolous issues litigated like this, when the law was clearly on the side of employees and/or the union).

I realize that not getting severance would affect the employees negatively. However, they would have full access to unemployment benefits, which would likely lessen the blow enough that they could make it until the grievance is resolved. Otherwise, I'm afraid like 'the wheels of justice,' grievance processes move slowly.
Joseph, Lawyer
Satisfied Customers: 5068
Experience: Extensive experience representing employees and management
Joseph and 2 other California Employment Law Specialists are ready to help you
Expert:  Joseph replied 1 year ago.
I hope the above information is helpful.

Please let me know if you have any follow up or clarifying questions as I want to ensure that you are completely satisfied with my service.

If not, please remember to rate my answer positively so I get paid for my work. (If I don’t receive a positive rating, I get nothing for assisting you, as I only receive payment for questions with positive ratings. Even if you made a deposit, it is still necessary to rate me positively for me to receive payment from your question).

Thanks and best of luck!

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