Employment forms are the documents and forms used in the workplace to determine eligibility for work, pay wages and benefits, arrange tax withholding, and more.
Document Each Stage of the Termination You can justify your termination by documenting. From the moment you notice you have an issue with your employee, you will want to start documenting all communications with that employee, their work issues, and keep performance reviews in a folder. If there are any coaching and extra training sessions issued to help and keep the employee on par, you will want to document those as well – because this will show that you did what you could to help the employee stay. Communicate Concerns Clearly Wrongful termination lawsuits typically happen because an employee did not realize there was anything wrong; therefore, they are terminated without reason. If an employee is in danger of losing his or her job, do not try to sugar coat it or avoid telling the employee. Instead, let them know what issues you have and possibly ways to correct it – giving the employee a chance to redeem themselves. Also, by discussing specific issues you have with them, you have more proof when it comes to justifying a termination if one occurs later on. No matter what, make sure you inform the employee immediately after an issue arises so that they have adequate time to correct it. Take Steps to Protect Your Business Once you have done everything you can to help that employee, and they have not improved within a fair timeframe, it may be time to terminate the employee. Before you actually start the termination process, make sure your reasons for the termination do not violate state or federal law. If you are unsure, consult an attorney. Some reasons that can violate the law include pregnancy, gender, age, or other types of discrimination. Make sure that you gather all documentation that supports or justifies your reasons for the termination. You will want to sit down with the employee with all of your documentation and discuss why you are letting them go. Show them performance reviews, the opportunities to improve that you have provided, and how they have not improved since then. You will want to give all of the details and not be ambiguous about the fine points. The broader you are, the more confusion that the employee may have – and the higher chance for a wrongful termination. Do Not Argue If the employee pleads or argues with you, do not engage. Simply state your facts and terminate the conversation. It is best that you have a witness there – but not a peer employee. You should have a member from your human resources department or another manager present for the termination. Having an employee’s peer present could be a violation of their rights. Cut all employment ties right away. That includes gathering any information, badges or parking passes the employee may have. If the employee has a login code, you will want to have your IT department change that or deactivate it immediately so that they no longer have access. Allow the employee to clear out their personal belongings, while supervised, and escort them to the doors. By preparing for the termination ahead of time, you can reduce the likelihood an employee will be able to sue. While no one can predict the behavior of a terminated employee, having a employment law attorney present can help your termination.
Until April 2018, the 11-factor balancing test in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (California Supreme Court) had long applied to classifying workers as employees or independent contractors. That court then dramatically changed the rules in Dynamex Operations West, Inc. v. Superior Court. See, Independent Contractor Status in California Now Falls Under Radically Different Rules (June 2018). Now, a hiring company could only treat a worker as independent if the individual met three criteria: (A) the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. Confusion followed since Dynamex’s “ABC” definition only applied to the reach of state minimum wage, overtime, meal and rest break and other related rules, with the 11 Borello factors remaining for contractor/employee distinction on all other issues, for example workers’ compensation protections and unemployment benefits. Assembly Bill (AB) 5 -- most of which is scheduled to go into effect January 1, 2020 -- is state government’s attempt to more uniformly apply the Dynamex “ABC” test, including to work comp and unemployment. Yet, true to the legislative process, the new law is full of available exemptions for certain occupations and industries: • certain medical professionals, licensed lawyers, accountants, enrolled agents, architects, engineers, and private investigators; • insurance licensees, securities broker-dealers and investment advisers; • direct salespeople, marketers, human resource administrators, travel agents, payment processing agents, and grant writers, real estate licensees, and repossession agencies; • graphic designers, fine artists, certain photographers or photojournalists, and certain freelance writers, editors, or newspaper cartoonists; • licensed cosmetologists, barbers, estheticians, and manicurists; and • licensed construction contractors that have licensed subcontractors. Another possible exemption is a business hiring another business to provide work directly to the hiring business and not to its customers. In suitable circumstances, this may apply to the software industry for example. Those covered by these exemptions still must meet the Borello factors to claim legitimate independent contractor status. While many commentators are pointing to the potentially devastating effect of AB 5 on the so-called “gig economy,” the law will also seriously affect many other industries, trucking prominent among them. Already at work helping companies with implementation, we will be supplementing this overview with additional articles on specific industries or features of the new law. See also: • Making Dynamex Retroactive (May, 2019) • Independent Contractor or Employee? (April, 2019) • Independent Contractor Status? It Depends (November, 2018) For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin. Helena Kobrin October 4, 2019
Why then would an employer offer to pay severance when it does not have to? Companies often say that severance is being offered to assist employees with their transition out of the company and to help them while they look for another job. That may be true, but it is not why most companies offer severance. To receive severance payments, you will likely be asked to sign a severance agreement, which is usually a long, complicated contract containing several terms that are beneficial only to the employer. Severance packages generally boil down to the employer paying you in exchange for two things: 1. Your agreement to not sue the company for any employment-related legal claims you may have, such as workplace discrimination; and 2. Your agreement to restrictive covenants, such as non-competition, non-solicitation and confidentiality or non-disclosure provisions that may limit your future employment. Before signing any severance agreement, you should take time to understand its provisions. Also, make sure you understand what the agreement says about the number of days you have to sign it, and when that time period starts. While the amount of time an employer will give you may vary, employers should give you an opportunity to consult with an attorney first. Agreements Not to Sue Nearly all severance agreements will require you to release – or promise not to sue – the employer for employment-related claims, whether or not they are claims you know about at the time you sign the agreement. The agreement likely will list several sources of such claims, including, for example, Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Equal Pay Act, the Age Discrimination Employment Act, the Family and Medical Leave Act, and the Employee Retirement Income Security Act, just to name a few. These laws protect employees from discrimination and retaliation by employers based on race, ethnicity, gender, religion, disability, and age or protect employees’ rights to medical leave and certain retirement and health insurance benefits. An employer generally will require you to waive claims under these laws before paying severance so that it can achieve finality in its employment relationship with you. But, to hold you to the waiver, the employer must give you what is called “consideration” in exchange for the waiver. Typically, the “consideration” is in the form of a severance payment. It is important, and in some instances required by statute, for the employer to give you time to evaluate the waivers. You should consider speaking to an attorney to discover whether you have a real claim under any of these laws before waiving your right to sue for any claims you may have against your employer. Some claims, like claims for unpaid wages and overtime under the Fair Labor Standards Act (FLSA) or for unemployment compensation, cannot be waived at all or can only be waived in limited circumstances. Restrictive Covenants and Confidentiality Provisions Your employer will want to protect its competitive advantage by having you agree to restrictions on your future employment – particularly if you had access to your employer’s trade secrets or other confidential information. These restrictions often come in the form of non-competition, non-solicitation, and confidentiality or non-disclosure provisions. A non-competition provision is a promise by an employee not to compete with his or her employer for a specified period of time, in a particular place, or in a particular way. A non-competition agreement may severely limit your ability to work in the industry for broad geographical areas or for long periods of time. These provisions might make it difficult to obtain another job in your field. You should make certain you understand the consequences of signing an agreement containing a non-competition clause before you sign it. Non-solicitation provisions usually prevent the employee from soliciting either (1) other employees and/or (2) customers, clients, or vendors of the employer. These types of provisions may prevent you, for example, from selling to your current customers, even if you brought them to your employer. Confidentiality or non-disclosure provisions typically require the employee to not use or disclose any of the employer’s trade secrets or confidential business information. The agreement the employer wants you to sign may have a very broad definition of the information the employer considers to be protected. You should make sure you understand the scope of the information you are being asked to keep secret before you sign the agreement. Restrictive covenants and confidentiality agreements may also be found in contracts you signed when you began working for your employer or at some other time during your employment. These agreements should be reviewed together with the severance agreement so you get a complete picture of your future employment restrictions and options. Regardless of whether they are contained in the severance package or in a prior agreement, non-competition and non-solicitation agreements generally must be limited in time, in subject matter, in scope, and geographically. You May Need an Attorney to Understand Your Severance Agreement A severance attorney can explain the provisions in your severance agreement and let you know whether they are reasonable or unreasonable for your circumstances, and can advise you on how to comply with them to avoid a lawsuit by your employer.
Consider Deadlines, and Act Promptly When you are given a severance agreement, check it for a deadline. For workers 40 years old or older, federal law requires employers give at least a 21-day period to review the severance agreement. If the employer has not given you a reasonable amount of time, or rushes your decision, that is a red flag. If you are being rushed, consider asking for more time. Make any such requests in writing. If you are over 40 and the employer is asking you for a decision in fewer than 21 days, consider telling the employer (politely, and in writing) that the law requires you be provided at least 21 days. Review the agreement promptly. If you decide you want an attorney to review the agreement, make all such arrangements sooner rather than later. The later an attorney is contacted, the harder it is for him or her to effectively help with severance matters. Know That Signing a Severance Agreement Involves Waiver of Legal Claims and Other Key Obligations The main benefit to you in signing a severance agreement is to receive payment or other beneficial terms provided in the agreement. The main benefit to the employer is that, in exchange for your receipt of payment, you will be signing away your right to bring legal claims against the employer. A severance agreement may also have the worker give up other things, e.g. rights to work for competitors, etc., but usually the waiver of potential legal claims is the biggest concession/value given up by the worker. Know there could be substantial value in the potential legal claims you are giving up. The most reliable way to learn the value is to have an employee rights attorney assess your potential legal claims and assess their value as compared to the offered severance payment. When I review a severance agreement and evaluate that given employee’s potential legal claims, sometimes I feel the proposed severance payment is worth far less than the value of potential legal claims. In those instances, the employee (with an attorney’s assistance) has significant leverage in negotiating to increase the severance, or may have the option to forego the severance and pursue a legal action instead. Because of this, it is probably worth your while to have an employee rights attorney assess potential claims, and their potential value. That attorney should be able to tell you why the severance offer (as compared to potential legal claims) is a fair offer, or why it is too low. Closely Review Terms About Your Obligations (e.g. Confidentiality) and Make Sure to Comply It is important you review the severance terms that provide obligations for you, and that you comply with those obligations if you sign the agreement. One particularly important obligation that's often in severance agreements involves confidentiality. Employers are understandably very concerned that the parties keep confidential the severance terms, especially the amount of money paid. Pay special attention to the wording of any confidentiality provision in your severance agreement. Make sure you read all confidentiality language in full, understand it, and do not violate it. A breach of confidentiality- perhaps more than any other type of breach- is likeliest to trigger strict penalty provisions and to motivate litigation. You should start keeping things confidential well before you sign the severance agreement and before the confidentiality provision officially applies. If you start discussing severance numbers with others, that could create problems in the employer’s perception and have a negative effect on you even if you feel you did not violate the agreement. (Note, however, that confidentiality terms usually allow certain exceptions where an employee can talk to an attorney and other specified types of persons). You may have former coworkers ask you “Did you settle? How much did you get?” The best answer is no answer. Sometimes, the severance itself will supply you with an answer phrase to respond with, such as “The matter has been resolved.” In any event, do not discuss the severance agreement or any of its terms as to dollar values etc. Know Severance Terms Can Sometimes Be Negotiated and Favorably Changed or Increased Many employees will accept a severance agreement as is, or will assume there is no room for negotiation. Do not assume this. Many employers will negotiate and favorably change severance terms. I have found this to be the case even with employers that originally said at termination (prior to my involvement in negotiations) that they would not negotiate with my client-employee. If a lawyer gets involved in severance negotiations and helps the worker identify potential legal rights, often an employer will respond by negotiating with the lawyer (rather than risk litigation if the severance falls through for them). There are instances where some employees must ask for changes to a proposed severance agreement. For example, a proposed severance agreement may need to be changed (or not signed at all) if it has terms problematic to one's career, such as restrictive non-compete terms that block future employment. These too are issues a lawyer can often effectively assist with. Consider Having an Attorney Review the Severance Agreement and/or Assist in Negotiations An employee rights attorney could provide value by reviewing the severance terms, by evaluating your potential legal claims and severance-negotiation leverage, and/or by assisting in severance negotiations. Such assistance can often be done for an affordable charge or on a contingency basis where no out-of-pocket fees are paid. Many attorneys (including myself) offer a free initial evaluation of an employee’s potential legal claims and severance leverage. Also, many attorneys (including myself) assist workers in severance negotiations and/or in litigation on a contingency basis where we are not paid fees unless our clients' financial situation is improved upon. If you contact an attorney about potentially assisting with your severance matters, he or she should be able to describe for you-- before you are charged anything-- the potential fee options (e.g. contingency or out of pocket fee value etc.) as well as the value you could possibly gain from legal services, .
Final Wage Laws for Employee Who Gives Notice of Resignation Where an employee gives their employer at least 72 hours’ notice of their intention to resign, the employer must pay that employee all of their wages, including accrued vacation, at the time of separation. California Labor Code § 202. If the employee gives less than 72 hours’ notice or fails to provide notice, the employer must pay the final wage, including accrued vacation time, within 72 hours of the separation. California Labor Code § 302. Final Wage Laws for Employee Discharged by Employer An employee who is discharged or fired by his or her employer must be paid all of their wages, including accrued vacation, immediately at the time of termination. California Labor Code §§ 201, 227.3. Several exceptions to this general rule exist for certain employees: A group of seasonal employees who are laid off at the end of the seasonal employment in the curing, canning, or drying of perishable fruit, fish, or vegetables, must receive their final wages within 72 hours after the layoff. California Labor Code § 201; An employee working in film or television production that is laid off from unusual or uncertain terms of employment requiring special computation of wages owed must be paid on or before the next regular pay date. California Labor Code § 201.5; An employee laid off from an oil drilling business must be paid within 24 hours of the discharge, excluding weekends and holidays. California Labor Code § 201.7; and, Where an employee is employed at a venue hosting live theatrical or concerts and is employed through a hiring hall or other similar method of short-term employment established through a collective-bargaining agreement, the CBA may set terms relating to final pay. California Labor Code § 201.9. Please be advised that there is no requirement that the employer pay out accrued sick leave upon termination. Your employer can pay final wages via direct deposit if you authorize or request payment by such method. California Labor Code § 213(d). Penalties for Employer’s Failure to Comply with California Final Pay Rules An employer that willfully fails to timely pay final wages to a departing employee, whether by discharge or resignation, may be assessed a waiting time penalty, payable to the departing employee. The waiting time penalty is an amount equal to the employee’s daily wage rate for each day the wages remain unpaid with a maximum span of 30 calendar days. Nishiki v. Danko Meredith, PC, 25 Cal. App. 5th 883 (2018). The employer will not be subject to the waiting time penalty where a good faith dispute exists concerning the amount of wages due. California Labor Code § 203. A good faith dispute exists where the employer can provide a good reason for not paying the wages. An example of a good faith dispute occurs where the employee’s last day of employment is disputed, which affects the amount of their final wage. Severance Pay In California, there is no legal requirement that employers provide severance pay to an employee upon termination. Instead, severance pay is dictated by the employer’s policy or the employment contract. Additionally, some employers may offer severance pay in exchange for a waiver or release of certain legal claims. If you separated from your employer, whether through termination or resignation, and have not received your final pay in accordance with the law, contact Astanehe Law for your free consultation. Astanehe Law may be able to assist you in recovering your final pay and waiting time penalty.
STEP ONE: Decide on Your Goals This can be one of the most important steps. You need to know what you want so that you can go out and try to get it. This will help you determine your strategy. “More money,” while good, is only part of the answer. Think about the other things you want to accomplish like extension of benefits, stock options, assistance in finding a new job, removal or reduction of non-compete restrictions, a positive reference and peace of mind, just to name a few. STEP TWO: Gather Your Facts Think through your employment history – accomplishments and failures – before you begin your severance negotiations. Create a timeline of events. Include names, dates, titles and anything else you can think of relevant to your employment. Write all of this down. Assemble documents and information you need to determine what has been offered to you, what has been left out and whether you can improve your severance through negotiation. STEP THREE: Find Your Bargaining Power Think of the reasons you were terminated. Negotiation is about leverage and bargaining power. Leverage is “influence or power used to achieve a desired result.” Your leverage may be a viable lawsuit you can bring. Do you believe your employment was really terminated for wrongful reasons such as discrimination for sex, gender, age, religion or national origin; discrimination due to a legitimate illness, disability or absence or to deny you accrued benefits; retaliation for having made workers’ compensation claims or sexual harassment claims; retaliation for whistle blowing or speaking out – age, gender, race, sexual orientation, disability, etc.? Or perhaps your bargaining power is what other people in positions similar to yours have received in severance. Have you been with the company for a long time and have many good relationships with people? These are all leverage points. Once you know what you want to accomplish and have assembled the facts underlying your employment, you can find your leverage points. STEP FOUR: Come Up With Your Plan of Attack Write down your facts, leverage points and arguments. Consider who you should reach out to, whether you should make first contact by letter, call or in-person, and what you should say. Consider what you want the tone of negotiations to be and what your employer wants to accomplish and his or her leverage points. An attorney can often obtain a better result than you can negotiating on your own because employers are often more convinced you are serious about taking action against them if an attorney contacts them on your behalf. STEP FIVE: Call a Severance Lawyer It can be helpful to have a professional on your side, so find dedicated attorneys who are very experienced severance negotiators.