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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6934
Experience:  Significant experience in all areas of employment law.
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I worked for a non-profit. They closed down had a mass layoff.

Customer Question

I worked for a non-profit. They closed down had a mass layoff. I was one of the ones. Everyone received severance pay. They are now starting off a new program. I interviewed for a different position and was offered the job. They are now saying they don't know if I will get the severance pay. I have been out of work for over a month with no pay. I had counted on the severance pay so now I am behind on many things. Am I eligible for the severance pay?
Submitted: 11 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 11 months ago.
Good evening and thank you for entrusting me to assist you Before I address your concerns, I have a couple questions for you.

How far in advance of your actual termination did your employer provide notice that you were being laid off? Does your employer have more than 100 employees, and if so, were you part of a layoff that included 50 or more?

I very much look forward to helping you on this matter.
Customer: replied 11 months ago.

The notice was more like a little over a week. there were over 50 employees laid off.

Expert:  Patrick, Esq. replied 11 months ago.
Thank you very much. And if you also wouldn't mind clairfying, how much time will pass in total between separation of employment from your last job and the start of your new one?

I should be able to answer your question after this.
Customer: replied 11 months ago.

I have been off work for a month. I have nothing in writing as to what this new position is offering or if it a positive offer yet. I don't know when this new position would start.

Expert:  Patrick, Esq. replied 11 months ago.
David,

Thank you again for your reply.

Employer are required to pay severance if there is a contractual agreement so providing or if they have a statutory obligation to do so. Assuming that you never signed an agreement to receive severance in exchange for your rights to sue, the only basis to compel your employer to pay severance would be statutory, and the only relevant statute that would compel severance under the circumstances is the WARN Act (what I believe you are referring to when you say the "Warren Act").

Under the federal WARN Act, an employer with at least 100 employees that lays off at least 50 during a 30-day period must either give 60 days notice of the lay off or pay 60 days wages. However, the WARN act applies only in circumstances where the affected employees suffer an "employment loss," and the WARN act provides a very specific definition as to what this means.

Specifically, the WARN Act defines "employment loss" as ... "(A) an employment termination, other than a discharge for cause, voluntary departure, or retirement, (B) a layoff exceeding 6 months, or (C) a reduction in hours of work of more than 50 percent during each month of any 6-month period." 29 U.S.C. § 2101(a)(6).

Assuming that you are re-employed within six months of your separation of employment date, you will not have suffered an "employment loss" within the meaning of the WARN Act, and thus will have no statutory basis to demand severance.

The fact that your layoff was originally expected to be permanent unfortunately would not change things. A federal court recently examined that exact question and determined that, despite an employee originally believing their layoff was permanent (and thus expecting severance under the WARN act), the fact they were rehired within six months meant they did not sustain an "employment loss," and no loss meant the employer did not have to pay any severance under the Act. The case is Rifkin v. McDonnel Douglas Corp and you can reference it here: http://www.leagle.com/decision/1996135578F3d1277_11178

Thus, an employee in your circumstance is not entitled to severance unless you have a contract so mandating or unless your re-hire does not occur within 6 months of your separation of employment.

I am truly sorry that I cannot provide you with more favorable news, but I trust that you will appreciate an honest and accurate answer to your question.

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 11 months ago.

I understand there is a Warren Act. I know you are referring to the Warn Act. I feel I will have to talk to another lawyer. Sorry

Expert:  Patrick, Esq. replied 11 months ago.

David,

We are referring to the same law, I can absolutely assure you of that. Non-attorneys commonly confuse the spelling of the law, and that confusion is evidenced widely across the internet, such as here: http://answers.ask.com/business/finance/what_is_the_warren_act

 

And here: http://wiki.answers.com/Q/What_is_the_Warren_Act_pertaining_to_layoffs

 

You have come to Just Answer for information from a knowledgeable, licensed attorney. I have been practicing employment law in the state of California for several years, and so I can assure you I am more than equipped to provide exactly that. Respectfully, XXXXX XXXXX to your question is correct.


Please consider that negative service ratings are a great harm to me and my ability to continue working on this site. I am very happy to answer any additional questions you have, and also to obtain confirmation from my colleagues on this site as to the accuracy of my answer.

I do kindly ask, however, that you be so kind as to reconsider your negative service rating. I am doing my very best to help you and I believe it is unfair.

Thank you so much for your consideration.

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