I worked with my company for 10 years since 2001 but in 2006 i relocated across the country and begin work for them at another branch. They are now saying they will only pay me severance for my service from 2006 to now because they will only consider that as continuous service. Although, they still acknowledge my lengthy service by issuing me a service award for ten years of loyalty. I also received a bonus check when I resumed work in 2006 because I was bonus eligible at the last place i worked for them.
Assuming no union or exact statement in the employment handbook sets forth the terms of the severance package, the employer is within its rights to set the terms of the severance package.
Herbert Tan, Esq.
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I am a California attorney and not eligible to give legal advice in your state. My comments are for information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT PROVIDE SIMILAR OR GREATER PROTECTION. If I refer to your state's laws, that only means I did a quick Internet search and found something that appeared relevant. You should not rely on any comment I make regarding your state's law. You MUST check with an attorney licensed in your state.
Another branch of the company is still the same company, so I understand why you are questioning your employer's position. Start with the understanding that severance pay is not required by law, nor is it regulated. Any employer that provides severance does so voluntarily. Given this, the employer can set its own terms for providing severance. Whatever terms it establishes must be followed, however.
Your company's severance policy sounds like it is based on years of service, so read the severance policy and see how it defines years of service. If it isn't defined in that policy, look at other policies, including any involved in the service award you received. If your company defines years of service consistently in every area other than severance, you may indeed have a solid claim for additional severance.
Employment law is complicated and fact specific. You may wish to consult with an experienced plaintiffs employment attorney in your state. To find a plaintiffs employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is www.nela.org, and you can search for attorneys by location and practice area.
Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing.
I hope you can resolve your situation and wish you the best.
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
Unless you have a written employment contract or are a member of a union, an employer does not have to pay you severance at all, so your question as to what years of service "should count" is somewhat beside the point. Unfortunately, severance is not a legal right, but rather merely voluntary and the employer can pretty much decide what amount to pay you. .
Having said that, very often a company who offers severance is doing it to protect itself from a future lawsuit. Most likely the written agreement that you sign before you receive your check will require you to surrender any right to sue your former employer for discrimination based on race, creed, color, ethnicity, religion, sex, sexual choice, disability and age. Accordingly, you MAY have some leverage in negotiating a higher severance if you believe that there is evidence that they are terminating you because of one of these discriminatory reasons.
I recommend that you speak to an attorney experienced in employment discrimination and severance agreements before you sign anything, to ensure that you are not giving up important rights. By the way, the actual severance agreement will most assuredly have a clause in it that says you have consulted an attorney before you signed this, and you should know that under New York State law, the courts have held that even if you have not actually consulted an attorney before you sign the agreement, you will be assumed to have spoken to someone and received good legal advice about the ramifications of the agreement.
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