No State Law Requiring Severance Pay for Workers
Q: There are rumors that my firm is planning to announce a major restructuring that will result in layoffs. I’ve been told that California law requires employers to pay severance when there is a major layoff. Is that true? Would the firm’s employees elsewhere in the nation and the world be entitled to severance because the company’s headquarters are in California?
--A.G., Santa Ana
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A: There is no California law requiring employers to pay severance in the event of a layoff. Severance pay must be provided only if it is required by an individual employment contract or in a union collective-bargaining agreement. There is a federal law, the Worker Adjustment and Retraining Notification Act, which requires certain employers to give 60 days’ notice of certain plant closings and mass layoffs. If the employer does not provide such notice, it may be sued and affected workers may recover up to 60 days’ pay. It is unclear whether the WARN Act would apply to your situation, because it can be somewhat complicated.
Finally, the law of the particular state or country where employees work determines the benefits employees can receive. The location of the company’s headquarters is usually irrelevant.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
Failure to Pay Accrued Benefits
Q: I recently left an employer who owes me money for accrued benefits. The amount isn’t disputed, but apparently the employer doesn’t plan to pay what is owed. Is there a deadline when this should have been paid? Is the employer subject to penalties for failing to comply? How should I go about trying to get what I’m owed?
--G.T., Pasadena
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A: If an employer discharges an employee, the unpaid wages should be paid at the time of dismissal. If an employee quits and does not have a written contract specifying a definite employment period, the wages are to be paid no later than 72 hours after the resignation. If the employee gives notice 72 hours in advance that he or she intends to quit, the employee is entitled to the wages at the time he or she quits.
The definition of “wages” is very broad and includes accrued benefits.
An employer faces substantial penalties for failing to pay as required. For example, employees are entitled to recover penalty wages from the due date until they are paid, up to 30 workdays.
In addition, a company could face criminal misdemeanor charges under the Labor Code for refusing to pay wages that are due after a demand has been made, or falsely denies the amount is due, as a way of harassing the employee or inducing the employee to agree to a lower payment.
For starters, you might mention some of these rules to your former employer. If that fails, you can file a claim with the state labor commissioner’s office or consult an attorney.
--Don D. Sessions
Employee rights attorney
Mission Viejo
Recording Workplace Conversations
Q: I work in an office with about 20 employees. A supervisor recently began carrying a small micro-cassette tape recorder, saying he wants to document any requests so he will not forget. He says it is easier for him to record the requests than to write them down.
Many employees are concerned about being recorded without their permission. We took our concerns to the office manager, who questioned the employee about the recorder. He told the manager that he used the recorder to help him remember conversations. He also claimed he could use the recorder under ADA (Americans With Disabilities Act) regulations, because he is forgetful.
Our concern is that we may be recorded without our permission or “suckered” into saying something that we will regret. Please advise what legal rights we have, if any.
--B.S., Torrance
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A: It is a crime for any person to record a confidential communication using an electronic amplifying or recording device, such as a micro-cassette recorder, unless the person has obtained the consent of all parties to the communication.
The prohibition does not apply to the use of hearing aids or similar devices.
A confidential communication would include any discussion the participating parties wish to confine among themselves.
A violation of the criminal statute is punishable by a fine of up to $10,000 and imprisonment. In addition, any employee who has been injured by the recording of a confidential communication may bring a civil action against the person who committed the violation. An employee could recover $5,000 without proving actual damages, or three times the amount of actual damages, whichever is greater.
In addition, an employee can seek a court injunction to stop the recording.
Although an employer such as yours has an obligation to reasonably accommodate an employee with a disability covered under the Americans With Disabilities Act, this does not exempt employees from the criminal statute described above.
--Diane J. Crumpacker
Management law attorney
Fried, Bird & Crumpacker
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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, 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.
