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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15662
Experience:  Employment/Labor Law Litigation
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I am facing a potential layoff in the upcoming weeks. I have

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I am facing a potential layoff in the upcoming weeks. I have a copy of the severage plan that outline the terms of ineligibility. In the plan, it lists that if employee accepts a new position on or before employe's term date, employee would not be entitled to severance benefits. My dilemma is that I have been recently offered a position but have not yet accepted. I have been told that news of who will be laid off will be announced in a couple of weeks. If I accept this position in writing, will this severance be null and void if I stay through the required period? What are my rights under the law? Please advise as I would like to not pass on this new job opportunity but am so close to receiving severance package.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.
Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.

You have no special rights under the law that would stop the operation of the company severance policy. Severance is not legally required in any state or under federal law.

So, the only controlling factor, in terms of your rights, are those rights granted by the company severance policy. A court will only hold an employer to that policy.

So, if the employer's policy states that accepting another position before your termination date nullifies your rights to severance, that is a legal limitation that the employer is allowed to set on its policy. If you accept this job offer from another company and your current employer discovers that, they can deny you severance legally.

If you accept this other job and the employer doesn't find out about it now, but does within the time frame for the statute of limitations for a breach of contract claim (different in each state, but averaging around 4 years), the former employer could sue for a return of the severance based on that term.
Customer: replied 1 year ago.


Thanks for your response. Just a follow up question-if I were to take on consulting/contract work during off hours (not a permanent FT-position) would this be viewed in the same way. This would be like a PT job on the side. I want to think creatively as so much is at stake. Before I proceed in giving notice or declinging the new position, I am considering every option. I would of course need to see if the new co would be willing for this flex arrangement which may be too much to ask. In lieu of formal acceptance, I would try to show them my commitment and interest and have a way to fulfill their needs. If this a viable approach, would you suggest I discuss with hiring mgr vs HR, or unable to advise. I would believe the hiring mgr may be more open than HR.

Expert:  Allen M., Esq. replied 1 year ago.
That is really going to depend on how their severance is defining employment.

There is no real difference, legally, between a full time and consulting position. Both could be construed as employment by the former employer and that wouldn't run afoul of any existing definitions of employment.
Customer: replied 1 year ago.

Thanks..one last question-if there was no formal acceptance of a new position with another Employer (via in writing) but perhaps a verbal could it be defended and allow for entitlement of severence benefits?

Expert:  Allen M., Esq. replied 1 year ago.
Sorry to again have to refer to the company policy in this matter, but if they would count a verbal acceptance nothing in law is going to make that invalid.

In law, nothing about a verbal acceptance is less formal than a written acceptance. Many people believe that for something to be formal, it has to be writing. That's actually not true. Lawyers push for things to be in writing, not for the formality, but so that everyone agrees on what they are agreeing to. Having it in writing just gives better proof, but there is no legal need for something to be in writing for it to be legally "formal."

The problem that you are ultimately facing here is that the courts are going to err on the side of the employer. Unlike a right that you might have, like the right to unemployment benefits, where the state would lean in your favor, severance is not a right. It is a benefit offered by the employer and the state court would always be leaning in the direction of the policy set out by the employer, because they are offering something that they are not legally required to offer.

So, any sort of ambiguity is going to be interpreted in the favor of the employer here. You would have the burden to establish that you were owed severance (not them having to prove that they didn't owe you).

So, the court would have to see some definitive statement in the company policy on severance which indicates that you are only disqualified if you sign a written acceptance, rather than a verbal acceptance.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15662
Experience: Employment/Labor Law Litigation
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Customer: replied 1 year ago.

I know that my employer can check, but is this something large companies typically do? Would a company be willing to provide this info to a former co(date of offer, offer acceptance)? Would they typically and willingly divulge if asked? I assume yes if subpoena but otherwise? Most employee checks that I have heard of for insurance, loans, etc check on salary and starting employment only.

Expert:  Allen M., Esq. replied 1 year ago.
If the severance is substantial, it would be something that a company would be willing to check into. It's not a common provision, so the employer must have placed it there for a reason, and will likely attempt to enforce it.

Would a company be willing to provide this information to your former employer? Maybe. Nothing in law would stop them from doing so, and your former employer could subpoena them to get the information. If the employer recognizes that they could be subpoenaed, they may just divulge the information to be left alone.

Yes, you are right about most of the things that companies will give out in an employment check, but they are not legally limited to only giving out those things. It's just what a company has chosen to give out.

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