Large Companies Must Give 60 Days’ Notice for Layoffs : Q
Q. We are employed by a major corporation that told us it was closing our location in May. With the encouragement of our manager, we went out and found other jobs. Now the company is saying it is not closing and will not give severance pay as promised.
Do we have any legal recourse?
--F.T., Fullerton
*
A. Large corporations are required to give advance notice of at least 60 days to employees who may be subject to a layoff when a business location closes. An employer who fails to give such notice may have to pay two months’ salary to these employees as a penalty. The intent is to provide the employees adequate notice to find other jobs.
Apparently, your employer gave you such notice. The problem is what it specifically promised. If it told you definitely that it was going to close that location by a certain date and promised certain severance along with it, you would have a good case for breach of contract. If it only promised that it might be closing in several months, then your rights would not be so definite.
If you have any information that the employer used this method to intentionally or fraudulently reduce the number of its employees rather than laying them off or firing them, you may be entitled not only to your actual severance benefits, but to “punitive” (punishment) damages as well.
I suggest that you evaluate how specific the employer really was. Send a letter detailing your claims to your employer. If your severance pay is less than $5,000, consider filing a small-claims lawsuit against the employer. The California labor commissioner may be of some assistance as well.
--Don D. Sessions
Employee rights attorney
Universal City
There Are No Laws on Pay Rate
Q. I am employed as an in-home caregiver for a 90-year-old lady and I work through a registry. They charge her $12.50 an hour and I receive $6.50 for my services.
Is this legal on their part to take almost half my salary? Is there a legal guideline for what percentage may be taken?
--M.C., Laguna Hills
*
A. I assume from your question that your employer has not promised to pay you $12.50 per hour.
There is nothing inherently unlawful about an employer charging customers more for the services provided by employees than the employer pays to the employees themselves. Indeed, that is how your employer pays for its overhead and makes a profit. There are no legal guidelines on how much more an employer may charge customers over what it pays the employees.
--Michael A. Hood
Employment law attorney
Paul, Hastings, Janofsky & Walker
Check Grievance Rules
Q. I am a supervisor of school bus drivers. The job description requires that I keep my school bus certificate valid. It was up for renewal March 15, but they were not able to schedule my behind-the-wheel test until six days after that. I was put on unpaid status, although my supervisor made it clear he had the option of allowing me to come to work with expired certificates.
I had two weeks to file a grievance, but it took longer than that to go up the chain of command in the department. Do I have any legal recourse?
--R.T., Los Angeles
*
A. It’s not clear from the facts you have given whether you would be prevented from filing a late grievance.
You should first consult the grievance procedure set forth in the union contract or other work rules covering you. If it states that time deadlines are to be strictly observed, you will probably be foreclosed from filing a grievance. Even if there is no specific mention that deadlines will be strictly enforced, your grievance may be rejected as late.
Even if your grievance is not rejected as untimely, you may lose on the merits, since you say that it was only optional--not mandatory--that your supervisor allow you to work with expired certificates.
Finally, if you are covered by a union contract you would not be able to file a lawsuit, since lawsuits are usually preempted by federal law where there is a contractual grievance procedure in place.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
Vested Workers Are Entitled to Their Funds
Q. I am a member of my company’s 401(k) plan, which requires three years of service before one becomes vested. The company is relocating 130 miles away and does not intend to credit the vested portion of these funds to employees who are unable to relocate.
Is this legal?
--H.L., Santa Monica
*
A. Once an employee becomes vested, those amounts cannot be taken away for any reason.
Furthermore, if 30% or more of the participants in the 401(k) plan are terminated as a result of the relocation, this may constitute a “partial termination” of the plan. If that occurs, the affected individuals become fully vested and are eligible to receive all of the employer’s contributions made to the plan on their behalf, even if they have not been with the company for three years.
If you believe that you may be entitled to additional benefits, you should submit a claim for those benefits in accordance with the plan’s claims procedure, which must be spelled out in the summary plan description. A copy must be distributed to all participants.
--Kirk F. Maldonado
Employee benefits attorney
Riordan & McKinzie
If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.
More Questions
* Times on Demand has prepared three pamphlets based on the Shop Talk column. They are answers to readers’ most-asked questions on overtime, unemployment insurance, terminations, medical leave and job benefits. To order, call (800) 440-3441. Order Item 2826 for overtime; Item 2827 for unemployment insurance, terminations and medical leave; Item 2828 for job benefits. Each pamphlet costs $5.41 plus 50 cents for delivery. Please allow two to three weeks for mail delivery.
