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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27888
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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My company me off after 23yrs of service. I worked a 40

Customer Question

My company laid me off after 23yrs of service. I worked a 40 hr week for 21 yrs and 36 hr weeks for the last 2 yrs. they are basing the severance pay out on the 36 yrs. is there any legal rules that apply here? They are also paying severance out over 23weeks and not sump sum. Is that legal in California?
Submitted: 9 months ago.
Category: California Employment Law
Expert:  LawTalk replied 9 months ago.

Good morning Pam,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

In terms of severance, be aware that the state of California has no mandatory severance pay law, and an employer may let an employee go without any pay or benefits other than that which has been earned up to the point of termination. On the other hand, if the company has a policy of paying severance pay to employees in your situation, then the employer must treat all employees equally in terms of the amount and nature of the severance pay based on their position in the company at the time of the lay-off.

Your best leverage for a complete and fair severance package, if you cannot convince the company to keep you on, would be for you to do some digging, asking questions quietly, and determine the history of severance in the company. Perhaps it is even laid out in the employee handbook, and if so, you know the starting point for your negotiations.

As for a severance package in CA---keep in mind that if the money you get is not stated in a writing as compensation for you giving up any rights you might have to sue the employer--- if it is simply a lump sum of money, or even payments over a period of time to substitute for your lost wages (which is also perfectly legal for the company to pay), then unemployment will consider it wages and you will be ineligible for unemployment benefits until the number of weeks has passed which equals the weekly pay you received before termination divided into the amount of severance pay you receive.

However, as many employers provide in severance agreements, if you have to give up the right to sue the employer for some reason in order to get the severance, then you will be eligible for unemployment benefits immediately.

Please keep in mind that, even though you have already paid your deposit money over to JustAnswer, until you rate me highly for my service, I will not be paid for having assisted you with your questions.

If you have additional questions, you may of course reply back to me and I will be happy to continue to assist you further until your questions have been answered to your satisfaction.

I wish you the best in your future.

Doug

Customer: replied 9 months ago.
Doug..thank you
I guess my concern is the fact that only a hand full of employees wreremade to go to 36 hours. At the time we asked HR about this specific impact and we were told severance would be based on 40 hours. The responses are documented. Do you think I have any recourse?

Appreciate your response to this question.
Expert:  LawTalk replied 9 months ago.

Good morning Pam,

Your argument would be to the company, to abide by their word. The law does not necessarily compel the company to pay you based on 40 hours per week if you were working 36 hours per week.

However, if you got this promise in writing from the company, or if the company stated the policy in writing in the employee handbook---then you would have something solid to argue. The argument would be based on the Quasi Contract Theory which is allowed to be enforced by CA employees against their employers when a company makes a promise in writing, the employees rely on that promise, and then the company tries to avoid that commitment.

Perhaps more importantly, until a severance agreement, and the specific terms of it, are in writing---it is all but impossible to enforce specific terms that might have been discussed in the company's decision process about severance. So if you have such a promise in writing---made by a company official---then you may enforce that promise---though you might have to sue in court to enforce it.


Thank you for your kind words. They are appreciated. Please keep in mind that even though you have already paid your deposit money over to JustAnswer, until you rate me highly for my service, I will not be paid for having assisted you with your questions.

Thanks again.

Have a great day,

Doug

LawTalk, Attorney
Satisfied Customers: 27888
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 9 months ago.
Thank you for your positive rating of my service, Pam. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise. I am generally available at least 6 days a week, and often 7, and it would be my privilege to assist you again in the future.

I welcome you to request my assistance in any future legal questions you may have, by simply placing my name in the first sentence of your new question.


Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It would be tremendously appreciated.
Expert:  LawTalk replied 9 months ago.
Good evening Pam,

I wanted to thank you for using JustAnswer, and to inquire whether my answer to you was helpful to your understanding of the law, as regards your question.

If there anything else that I can assist you with, please feel free to ask. If you do not require further legal information at this time, please feel free to bookmark my profile so you can request me when you do have another question. Here is a link to my profile: http://www.justanswer.com/law/expert-lawtalk/

Thank you very much and take care.

Doug

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