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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
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Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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Hello, I have been an employee of an accounting firm for about

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Hello, I have been an employee of an accounting firm for about 7 years. They are in the process of moving many of the jobs in my area (IT) from New Jersey to Atlanta. I was given notice the other day that I was impacted by this. I was given over 3 months notice and the option to move there to keep my job or leave and get 3 months severance and assistance looking for a new job. This seems more than fair to me and is more than what they were obligated to do according to the employment contract I signed when I joined the firm. However I fee I should get some legal advice before I sign the paper agreeing to the terms. Do I have any other rights or just be glad they are being this generous and agree to the terms, which also includes full severance if I find another job and leave early. I should also note that I am "100% virtual", I have an agreement with then that I work from home so it's a little ridiculous to say my job has to be done in Atlanta. They announced from the beginning that it is a cost-saving measure (less real estate in New Jersey and salary is less in Atlanta). If I moved I would keep my current salary but they said I might not ever get another raise since I'd be at the top of my salary band. They are also giving $7,500 in moving expenses but I don't plan to move, for several reasons, and will have to take the severance. Please advise.
Hello,

Thank you for the information and your question. You correctly noted that, unless your employer has a duty to pay severance under a contract or company policy, they do not have to offer severance to employees who choose not to transfer with them to Atlanta. So, any severance is more than the law requires. If they were shutting down the company completely or not offering transfers, then they would probably be covered under the Federal law called WARN. That does require either 90 days notice or 90 day severance if no notice in complete closure situations.

But in any event, working virtually, unless written in a contract for a specific term is not a guaranteed term of employment. So, the employer has a right to change that term if they choose and can require a relocation, even if you were to remain virtual.

So, although I can't tell you what to do, I don't see any obvious legal issues that would make what your employer is doing unlawful in any way. In addition, they are providing you with more rights than the law requires. So, it comes down to whether or not you want to move knowing that you might not receive a raise, and also keeping in mind that your employer could let you go for any, or no, reason after you moved. Or, whether you are ready and willing to stay where you are, take the severance pay, and look for new opportunities in your area.

If you have any specific follow up questions, I am more than willing to try to assist you further. The question is always open for follow up questions, even after you leave a rating.
Marsha411JD and 2 other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

Thank you for the quick response. I have a few follow-up questions at this time. By law, they have to pay me for unused vacation time, right?


 


They also have a rule that 401k matching is paid out on 12/31 of each year if you are employed at that time so it looks like I will not get my matching for this year. Are they allowed to do that? Can I negotiate any terms of the termination?


 


Brett Husted

Hello again and thank you for your follow up questions. Oddly enough, NJ, like many states does not mandate that an employer pay out any unused accrued vacation leave unless the employer has a written policy or contract guarantees that payment. In other words, it is legal for an employer in NJ to have a policy that states they do not pay for any unused accrued leave upon separation. So, you will want to check your policies or with HR to see what their practice is, since that is what controls.

Yes, the employer can do that, in fact, the employer must follow their pension/401K rules to a tee. That is because these types of benefits are controlled by ERISA, which is a Federal law and requires that employers strictly adhere to the language in their Plan. That said, you could try to negotiate for a partial payment of what the employer would have contributed to your 401K, but they are likely building all of that into their offer of severance, which usually covers everything that they might owe you.
Customer: replied 3 years ago.

OK thank you. I was also wondering what my rights are about being let go for poor performance at this point. Is it the same as before? I ask because it is very difficult to stay motivated to do a good job when I know I have no future with this company and I have a lot of other things on my mind such as finding a new job, potentially going through a divorce, getting 2 kids through college, etc. The letter indicates that I have to perform adequately until my end date (11/1) and if I have to be terminated for poor performance I may not be eligible for the severance. Any idea what the chances are that they would actually let me go early if I don't perform very well? Also, what if I get sick or have a family issue or something and need a leave of absence?

Hello again,

Hopefully the issue of poor performance won't be an issue between now and your last day of scheduled work. I can certainly understand all of the stresses you are under. If you are let go before the last day chosen by your employer due to poor performance, then your employer could withdraw the severance offer, since you would not be serving to the end of the agreement. That said, if you had strong evidence that your termination was just a pretext for getting out of paying severance, then you could file suit for breach of contract for the severance amount.

I can't guess whether or not your employer would do that or not, it isn't common. However, you know them better than I do and know whether that seems like something they would do.

As for being sick, if you have sick leave accrued, then you would be entitled to use that and if you qualify for FMLA and needed to take that time, then you could not be treated adversely because of use of FMLA.

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