New Owner May Have Cut Severance Policy
Q My company has been through several owners, and now I have been laid off after 13 years. Can I force the company to adhere to the severance policy that was in effect when I was hired?
--S.P., Aliso Viejo
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A If the company (or any of its new owners) notified employees that the old severance policy was discontinued, or that a new policy was put in place, the old policy would no longer be enforceable.
Were new employee handbooks issued at any point that contained a severance policy? If so, the new policy probably would have superseded the old one.
Even if no new policy was formally issued, if your employer is a different corporation now than when you started working, the old severance policy might be difficult to enforce unless each new corporation expressly assumed the liabilities of its predecessor. (Often, if a new owner purchases the assets of a business, as opposed to the stock, a new corporation is formed.)
On the other hand, if the new owners all bought stock, as opposed to assets, and no new severance policies were issued, you might be able to enforce the old policy.
One good place to start is to determine whether other employees who recently were laid off received any severance pay under the old policy.
--James J. McDonald Jr.
Attorney, Fisher & Phillips LLP
Labor law instructor, UC Irvine
Time Spent ‘on Call’ May Not Be Free Time
Q My husband is on call quite a bit for his employer, and it keeps us from being able to go anywhere. Are employers required by law to pay employees for being on call?
--K.C., Beaumont
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A Employees who are not exempt from state and federal wage and overtime rules may have a legitimate legal claim for compensation, depending on the nature of the on-call requirements.
Certainly, they should be paid for any time spent performing duties of employment after being paged. The issue is whether they are entitled to compensation for time spent “in limbo” awaiting a call. If the on-call status substantially restricts an employee’s personal activities, the time spent on call would be considered work time.
If employees on call are required to arrive at a job location a short period of time after being paged, and this substantially restricts their ability to plan personal activities, they should be paid for time spent on call. But if employees must call in within an hour of being paged, this would not be considered restrictive enough for on-call compensation.
Of course, there would be no pay requirement for an exempt employee who is on call. There is no limit on the number of hours such employees are required to work for their set compensation.
--Don D. Sessions
Employee rights attorney
Mission Viejo
Sick Day Rules Vary With Company Size
Q I am a salaried employee at a major aerospace company. Recently, my manager counseled me about my use of sick time for the last 12 months.
My company gives me 12 sick days per year as one of my benefits and I took 10 valid sick days during the 12-month period. My manager advised me that upper management had determined that anyone taking more than eight days in a 12-month period should be counseled and informed that excessive use of sick time could result in a percentage loss of annual bonus/merit and affect promotions. This counseling was only given to our group, not all of the employees at the company.
I am married and have children who sometimes require me to take care of them. Are management’s actions illegal and do they constitute harassment?
--H.G., Palmdale
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A As a general rule, there is nothing illegal about an employer counseling employees who have taken eight or more days of sick leave in a year.
However, if your employer has at least 50 employees and your sick days are being used to take care of a serious health condition that either you, your spouse, your parent or one of your children have, you may have rights under state or federal family rights laws. In addition, if your employer has at least 25 employees, a law in California enables parents of school-age children to take off up to 40 hours per year (but no more than eight hours per month) to visit their child’s school or day-care facility without repercussion by the employer.
If neither situation applies to you, you may have an argument that by giving you 12 days of sick leave but then punishing you in the form of a counseling when you have exceeded eight, the company has breached its contract with you.
In order to evaluate whether this is a viable claim, you should review any document describing this policy. If you wish to pursue the matter you should consult with an attorney familiar with employment matters.
--Diane J. Crumpacker
Management law attorney
Fried, Bird & Crumpacker
Social Security Often Trims Monthly Pension
Q After taking early retirement, I have discovered that my monthly pension will be reduced by the amount of Social Security that I receive when I reach age 62. Is this a common practice in pension plans?
Is there any way I can fight this pension reduction?
--R.H., Los Angeles
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A The benefit received under many pension plans is offset by the amount of the participant’s Social Security benefit.
To make sure that your company’s pension plan contains this provision, you should review your summary plan description. If you don’t have a copy of the summary plan description, the plan is required to provide one to you, free of charge.
If the plan contains this provision, you would not be able to change it. However, when the reduction does become effective, you should verify that the calculations are correct. Occasionally, a pension plan will be reduced by an improper amount because many plans make incorrect assumptions about an employee’s Social Security benefit.
--Kirk F. Maldonado
Employee benefits attorney
Riordan & McKinzie
