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Good afternoon, I am consulting for a small employer in California.

Good afternoon, I am consulting...
Good afternoon,
I am consulting for a small employer in California. The employer has 1 at-will employee. There is a signed at-will employment contract in place. The contract states that, “Employer or Employee may terminate this Agreement at any time effective upon notice to the other party, and for any reason or no reason, for cause or without cause.” The employee gave notice to the employer via email message on February 27, 2013, stating employee had been forced to seek other employment due to the need to make more money to live. Employee offered 2 weeks’ notice, give March 14th as the last day employee would work.
The employer has determined that employee is to be terminated immediately, and will not be required nor allowed to work the 2 weeks. The employer plans to terminate the employee either via telephone this afternoon (March 4), or in person tomorrow morning at the beginning of the shift (March 5). In either case, employer will present employee with the final paycheck for all money owed in regard to salary and accrued vacation pay at the beginning of business tomorrow (March 5). Employee has employer paid health insurance coverage, which has been paid through the end of March, 2013, and will be offered continued coverage under COBRA law.
Given the above, I have a few questions in order to ensure the employer follows proper procedure in terminating the employee:
1. Since the employee has initiated the termination by giving notice:
a. Is the employee entitled to unemployment insurance benefits through the EDD (assuming employee is not terminating for any cause)?
b. Is the employer obligated to pay the employee the additional 2 weeks’ pay? If not, is it recommended that the employer pay the employee the 2 weeks’ pay anyway?
2. The employer plans to deliver a letter to employee in person, at the time of the termination tomorrow, thanking the employee for past service, detailing the basic facts surrounding termination (i.e. employee initiated termination of employment via email, offering 2 week’s notice, and that employer declined to continue employment for the 2 weeks), and noting enclosed final paycheck for all pay due employee at termination. Is this recommended? If so, do you have any suggestions for things to include in this letter?
3. Should the employer require the employee to sign a statement of some sort that employee was terminated? If so, please provide example.
In addition to the above questions, I would appreciate any further information you may deem useful to the employer in this action.
Thank you,
Colleen Hendrix
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Answered in 15 minutes by:
3/4/2013
LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 37,855
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
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Good afternoon Colleen,

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

You asked:
1. Since the employee has initiated the termination by giving notice:
a. Is the employee entitled to unemployment insurance benefits through the EDD (assuming employee is not terminating for any cause)?
Yes, but in this case not for the first week which is the required waiting week, and then only until the date they originally gave as their last day.
b. Is the employer obligated to pay the employee the additional 2 weeks’ pay? Absolutely not. If not, is it recommended that the employer pay the employee the 2 weeks’ pay anyway? The employer may give the employee two weeks pay, consider it wages for two weeks and that will avoid the employee being able to file for unemployment---which might be in the best interest of the employer.
2. The employer plans to deliver a letter to employee in person, at the time of the termination tomorrow, thanking the employee for past service, detailing the basic facts surrounding termination (i.e. employee initiated termination of employment via email, offering 2 week’s notice, and that employer declined to continue employment for the 2 weeks), and noting enclosed final paycheck for all pay due employee at termination. Is this recommended? It is neither required under the law, nor suggested. There is no reason to put all of this in writing, and it does not serve to preserve any rights of the employer, or limit the rights of the departing employee.If so, do you have any suggestions for things to include in this letter? If the employer feels compelled to provide a letter, then limit it to confirming that the final wages, including accrued vacation time is enclosed, and simply thank the employee for their past assistance, if that is something the employer wants to do---though the same thing can be done by the person handing the employee their final check, and nothing need be put ion writing.
3. Should the employer require the employee to sign a statement of some sort that employee was terminated? If so, please provide example. No, the employer should not ask the employee to sign anything. A demand that something be signed can only lead to problems such as a claim that the employer withheld final wages in an attempt to get the employee to acknowledge that there are being terminated---which if true, would be a violation of the CA Labor Code.

I think that the best way to proceed---and I often suggest that employer terminate employees who have just given notice as a precautionary measure against possible problems in the final days of employment----is to hand the employee their final check, and any additional wages in the future that the employer might want to give, thank them verbally for their service and wish them well.

Avoid any attempt by the employee to engage in a debate about why the employer chose to do this, or get in an argument about fairness. Nothing good can come out of such exchanges with the employee.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug
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Customer reply replied 4 years ago

Thank you, Doug.



Most of what you've written is fairly clear. I do have a couple follow up questions. Upon review of the employee's email to the employer, the employee state March 21, 2013 as the last day of employment:


 


"Please accept this as my official notice of resignation as of February 27, 2013. Unfortunately, having my hours reduced so dramatically, with so little notice, has left me with few options. However, I have been fortunate enough to secure a comparable position with someone else. My last day [at work] will be Thursday, March 21, 2013."


 


If it is of significance, the employee signed the at-will employment agreement on February 13, 2013, stating, among other things, that the employee would work approximately 20 hours per week and would be paid semi-monthly. Previously, the employee had been working with no contract since February 2012, at roughly 40 hours per week. The rate of hourly pay remained consistent with the rate of pay prior to entering into the agreement; however the hours, as you can see, were cut in half. That may or may not have any bearing in the matter.


 


Also, please note that the employee will be due 20 hours paid vacation time per the employment contract signed.


 


Given that the employee stated that the last day of employment would be March 21, 2013, here are my additional questions:


 


1. If the employer decided to pay the employee through March 21, 2013, that would cover approximately 1 1/2 pay periods. Employee would have received a semi-monthly paycheck on March 16th, for the period of March 1 - March 15, 2013; and would not have been paid again until April 1, for the period of March 16 - March 31, 2013.


 


Based on the above, I would propose the employer pay the employee full pay through March 15, 2013; and then the equivalent amount for the period of March 16 - March 21, 2013. Essentially, the total amount would be two full paychecks, or one month's salary at 20 hours per week. This would represent the first 2 weeks of March, plus the 3rd week of March, plus the 20 hours of paid vacation due.


 


Although I realize (I think) that the employer is NOT obligated to pay anything beyond the vacation pay due and time worked through February 27, 2013, it looks to me as though the simplest and cleanest way to wrap this up. Please let me know what you recommend.


 


Thanks, XXXXX XXXXX

Hi Colleen,

You asked:


Most of what you've written is fairly clear. I do have a couple follow up questions. Upon review of the employee's email to the employer, the employee state March 21, 2013 as the last day of employment:



"Please accept this as my official notice of resignation as of February 27, 2013. Unfortunately, having my hours reduced so dramatically, with so little notice, has left me with few options. However, I have been fortunate enough to secure a comparable position with someone else. My last day [at work] will be Thursday, March 21, 2013."



If it is of significance, the employee signed the at-will employment agreement on February 13, 2013, stating, among other things, that the employee would work approximately 20 hours per week and would be paid semi-monthly. Previously, the employee had been working with no contract since February 2012, at roughly 40 hours per week. The rate of hourly pay remained consistent with the rate of pay prior to entering into the agreement; however the hours, as you can see, were cut in half. That may or may not have any bearing in the matter. No, it is of no significance. An at will agreement that states that 20 hours a week is anticipated is not a guarantee or a contract of employment.



Also, please note that the employee will be due 20 hours paid vacation time per the employment contract signed. Then as of the date of the agreement to provide vacation time, the employee must be paid for the vacation time accrued in the interim---between the date vacation was promised and when termination occurs. Only a pro rata share of vacation need be paid though. Not what was perhaps promised for the whole year.



Given that the employee stated that the last day of employment would be March 21, 2013, here are my additional questions:



1. If the employer decided to pay the employee through March 21, 2013, that would cover approximately 1 1/2 pay periods. Employee would have received a semi-monthly paycheck on March 16th, for the period of March 1 - March 15, 2013; and would not have been paid again until April 1, for the period of March 16 - March 31, 2013.



Based on the above, I would propose the employer pay the employee full pay through March 15, 2013; and then the equivalent amount for the period of March 16 - March 21, 2013. Essentially, the total amount would be two full paychecks, or one month's salary at 20 hours per week. This would represent the first 2 weeks of March, plus the 3rd week of March, plus the 20 hours of paid vacation due. There is nothing wrong with proposing that. Again, though, it is more than is required under either federal employment law, or CA law.



Although I realize (I think) that the employer is NOT obligated to pay anything beyond the vacation pay due and time worked through February 27, 2013, it looks to me as though the simplest and cleanest way to wrap this up. Please let me know what you recommend. The benefit in doing this---paying the wages through the 21st, is that it eliminated the unemployment claim, and any possible increase in unemployment premium that the employer might have to pay if unemployment benefits were granted. It sounds fine to me.

 

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug

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Customer reply replied 4 years ago

I tried to add this part at the end of my last reply, but do not know if it ever reached you. I have spoken with the employer and given the information you have provided. Understandably, the employer does not wish to pay the employee any more than what is due under the terms of the contract or federal and state laws.


 


The employer would like to know if the terms of the signed contract would preclude the employee for filing an unemployment claim with the EDD. The specific language of the contract to which he is referring is as follows:


 


Mandatory Arbitration. Except for the extent pre-empted by federal or state administrative law (but only to the extent such laws may not be waived) any and all controversies or claims arising out of or relating to this Agreement or the break thereof, including without limitation injunction relief, shall be settled by binding arbitration before the American Arbitration Association (or the successor thereof) according to such arbitrator’s arbitration rules.”


 


If the employer elects NOT to paid anything above the 20 hours of paid vacation due under the terms of the contract agreement, would the employee still be able to file (and receive) and unemployment claim with the EDD for wages through March 21, 2013?


 

Good afternoon Colleen,

You asked:

The employer would like to know if the terms of the signed contract would preclude the employee for filing an unemployment claim with the EDD. The specific language of the contract to which he is referring is as follows:



Mandatory Arbitration. Except for the extent pre-empted by federal or state administrative law (but only to the extent such laws may not be waived) any and all controversies or claims arising out of or relating to this Agreement or the break thereof, including without limitation injunction relief, shall be settled by binding arbitration before the American Arbitration Association (or the successor thereof) according to such arbitrator’s arbitration rules.” Entitlement to unemployment compensation is a state law, and state policy, that may not be abrogated by contracting with the employee to not claim it.



If the employer elects NOT to paid anything above the 20 hours of paid vacation due under the terms of the contract agreement, would the employee still be able to file (and receive) and unemployment claim with the EDD for wages through March 21, 2013? Yes, an employee terminated after giving notice is still entitled to unemployment through the date they supplied as their last day---presuming that the termination is not based on good cause such as a violation of company policy or safety regulations of the employer. I presumed this not to be the case when you stated that the termination is just in response to the notice of resignation by the employee for a future date.

 


You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug

 

 

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Thank you for your positive rating of my service, Colleen. It has been my pleasure to assist you and I hope you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

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