Answers to our Clients’ Most Frequently Asked Questions
Have a question? We probably have answered it in one of our many informative frequently asked questions (FAQ’s). To find the answers you’re looking for, you can click on “Show Answer.” You can also select a specific category from the drop-down box to narrow the results, or use the search box at the top or bottom of the page to access relevant information from anywhere on the site.
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Negotiating a Severance Agreement. Can their Attorney Negotiate More Money?
You should always contact an experienced employment attorney to review your severance agreement to ensure that you are fully protected. Most severance agreements provided to employees are drafted to protect the rights of the Company. Aside from monetary payments, it is important that the agreement is fully enforceable, protects all of your rights, addresses various issues that may be important to you following your employment, such as letters of reference and the characterization of your separation.
To the extent that you have any legal claims against your employer, an experienced employment counsel will ascertain the basis of such claims and value whether the offered severance sufficiently compensates you for waiver of such claims.
Should Company Oppose Employee's Claim for Unemployment Insurance Benefits?
There is much more information needed to advise on this. Generally, unless the employee has engaged in misconduct that would disqualify them from UI benefits that would permit them to obtain free “discovery” in a hearing, it generally is not worth opposing an employee’s claim for unemployment insurance benefits for several reasons.
- First, although the decision is inadmissible in a civil case, the sworn testimony is admissible. This becomes an issue when the employer, not represented by counsel, sends a representative to the hearing whose testimony and evidence binds the employer. When the same issues are presented in a subsequent civil action, the prior sworn testimony can and will be used against them. Since the employer has not fully investigated the issues at the time of the unemployment appeals hearing, it is better to resist the urge to attend.
- Second, employees and employers contribute to unemployment. Employers who challenge an employee’s application for unemployment benefits that the employee is in fact entitled to often times encourages employees to sue the employer civilly. Unemployment insurance benefits are minimal and capped such that the costs of opposing it often will cost more than the benefits at issue.
- Third, unless an employee has voluntarily quit and is not claiming constructive discharge or engaged in serious misconduct, the employee is entitled to and will be awarded unemployment benefits so any such appeal is a waste of time, money and serves no benefit to the employer since the unemployment insurance award is inadmissible in a civil action.
If the stated reasons for denial of UI benefits reported by the employee raises unlawful employment actions, the employer is on notice of anticipated legal action, and is strongly advised to retain counsel immediately to launch an investigation of such claims.
Company's Clients & Vendors Report Former Employee Defaming Company and Seeking to Take Business. What Can Be Done?
Immediately retain experienced employment counsel to issue cease and desist letters to the persons who are identified as having engaged in the reported conduct which may also include filing an immediate motion seeking injunctive relief.
In addition, counsel will recommend launching an attorney-client privileged investigation of the allegations that will dictate future steps.
What Actions, if Any, Can a California Company take in Response to Reported Off-Duty Employee Conduct?
You have reported that a supervisor at your Company has heard secondhand regarding an employee’s off-duty conduct from several employees. What is the Company permitted to do?
It depends on the alleged conduct, applicable state and federal laws, Company policies and a number of other factors. Consider starting with answering the following questions:
- Is the conduct lawful or involve potentially illegal conduct?
- Is there an applicable state law that protects the employee’s off-duty conduct?
- What is the risk/cost the employer is seeking to mitigate?
- Is the employer willing to apply the policy consistently? What effect will the policy have on employee morale?
If the alleged off-duty conduct involves cyber-bullying or unwelcome sexual conduct, for example, then the Company will be legally obligated to investigate it. If the off-duty conduct involves employees venting about the terms and conditions of employment on their personally-owned social media accounts, that conduct may be protected under the National Labor Relations Act, that prohibits taking adverse employment actions based on such conduct.
Other protected areas that require further analysis to determine how to proceed involve: union activity, drug, alcohol or marijuana use, political and religious activities and beliefs, off-duty arrests/violence, and moonlighting.
Issues with Long-Term Disabled Employees Returning To Work Following a Stroke
You have stated, "We employ 52 employees in California. A long-term elderly employee just returned to work after a minor stroke. His doctor provided a release to return to work, but now his supervisors and colleagues are reporting issues with his work. We are concerned for his health and want to handle this right. What do we do?"
Based on your representation that you employ 52 employees, your Company is covered by the Family and Medical Leave Act (FMLA), California Family Rights Act (CFRA), Americans with Disabilities Act (ADA), Fair Employment and Housing Act (FEHA), and, if applicable to the prior leave, California’s Workers’ Compensation Act (WCA) and Healthy Workplaces, Healthy Families Act of 2014.
A minor stroke would qualify as a “serious health condition” for purposes of family and medical leaves (FMLA/CFRA) and as a “disability” under FEHA. Depending on how much time he was out of work and which of these leaves he was on at the time of his return to work would dictate the type of release/second opinion etc. that you could have requested upon his return to work.
Nonetheless, as of this time, supervisors and colleagues are reporting issues with his work that although not specified strongly suggests that you question whether he is currently able to perform the essential functions of his position, with or without reasonable accommodations. While there is not enough information here, for example, as to his position, the essential physical and mental requirements to perform his position, if any reasonable accommodations have been provided or can be provided. Typically, the next step will include addressing the issues with the employee and exploring possibly reasonable accommodations, along with providing his treating physician with a new medical certification to complete, along with his job description, and description of the behavior reported. In some cases, the Company can request that the employee undergo a fitness for duty examination at the Company’s expense.
Long-Term Executive Just Resigned, Joined Competitor, and Contacting our Clients & Employees. What Do we Do?
There are a number of immediate actions that should be taken but only at the direction of counsel to protect your Company’s most valuable assets, its information, employees and clients. However, before doing anything though, it is critically important that no one touches the employee’s electronic communications until they have been properly preserved, collected and reviewed because digital footprints are the most important evidence in these types of matters. Retain experienced employment counsel immediately to issue cease and desist letters to the executive and new employer that among other things will demand immediate return of all Company information and work with you to preserve all relationships and properly collect the executive’s digital footprint.
How does our Company Terminate A Key Employee Who Could Hurt our Company?
You have asked us how to fire an inept employee who has been counseled repeatedly who also happens to perform a key position with access to highly confidential information. This is typically your bookkeeper/personal assistant/works in accounting/finance/IT/or has been privy to information that if revealed could hurt our Company. You have asked us how do you separate with this employee unscathed.
The most dangerous employee of them all is the employee who knows the most critical highly confidential information related to your Company and the executives personally. This employee is often times the trusted assistant or performs work in payroll, HR, or IT, where they have access to confidential accounting and employee matters, including, compensation, benefits, payroll, terminations, claims, lawsuits, severance and settlement agreements.
By virtue of the employee’s position, or relationship with high level executives, the employee knows about business decisions that if revealed, could result in corporate and/or personal liability. In other words, this employee knows where all the bones are buried.
Even if there are no bones to speak of, this employee can make the Company and executives’ life miserable by contacting state and/or federal agencies or equally bad, share “confidential” information that was not properly protected as proprietary trade secrets.
This by no way means that the most egregiously performing employees are given a free pass solely because they know highly-confidential information; only that careful planning, preparation and analysis is strongly recommended before taking adverse action. Even if your Company has strong non-disclosure policies, signed agreements and processes that limit authorization/access/use of your Company’s confidential information and legitimate, non-discriminatory reasons for termination, careful consideration must be given to the manner and method of achieving it, as these disgruntled former employees are the most dangerous and costliest of them all.
How To prevent Long-Term Elderly Employees from Suing
You have provided us with information that you employ a long-term (30 year) chronically underperforming Caucasian 63 year old male employee and want to finally get rid of and replace with a rock-star recent hire (6 months). The recent hire is a 22 year old female Hispanic employee who has been doing many of his duties already. You have asked how do you prevent him from suing you.
While anyone can file a lawsuit, obtaining a legally enforceable release of claims is the only way to fully protect the employer. The long term employee who is a member of at least one protected class is a common call we receive because the client recognizes the risk of terminating a long-term older employee and replacing him/her with a younger employee that may be attacked as age discrimination exposing them to significant damages because of the length of service and the likelihood of finding a similar job earning the same high income and benefits is minimal.
Often times, the challenge for employers is that even though everyone believes the long-term employee has chronically underperformed, the personnel file and other evidence suggest otherwise. Either the file is empty or it shows raises, bonuses, and either fails to properly document and counsel on all of the performance issues, or three inches of write-ups all concluding with further violations will result in disciplinary action, up to and including, termination – for the last 30 years.
Typically, the older employees lack technical skills, are resistant to change, and become the butt of jokes around the office that come back to haunt the employer. When we ask what is the straw that broke the camel’s back that has led you to this decision, the straw is insignificant in comparison to all of the past issues which were essentially ignored.
After analyzing exposure, employers often opt to offer severance packages to the affected long term employee in these situations. Because the employee is over 40, a waiver of the federal age discrimination claims require that the employee be provided with a set number of days to consider the agreement, and an additional 7 days to revoke it following execution. The manner in which a severance package is offered, the terms, how, when, where, the persons involved, and the meeting itself are all critically important in achieving resolution.
Receiving a Notice of Employment-Related Claim. What should you do first?
You will need to retain experienced employment counsel immediately. Before you do, it is always best to obtain as much information as you can on the matter before placing the call. However, before you do, it is important that:
- You do not touch any electronically stored information such as emails, texts, word documents etc.) because you want to preserve the metadata (information about the particular email, such as when it was prepared etc.). If there are paper copies of the personnel file, payroll/time records, notes or other paper documents (i.e., not electronically stored information such as emails, texts etc.) scan them so you can provide them to counsel.
- You do not communicate in writing regarding the substance of the matter or complainant because any writings are discoverable. This means if legal action follows, all written communications regarding the matter or complainant will need to be produced. If the communications are generic such as please copy and scan x’s personnel file, that’s fine. Once counsel is retained, all internal communications regarding the matter or complainant with counsel will be protected by the attorney-client privilege, to the extent that you are discussing legal strategies and seeking legal advice.
- You refrain from making any statements, oral, written or otherwise, regarding the complainant or the matter to anyone (except counsel), including, regarding the merits, because it may give rise to a claim for defamation, upon which personal liability lies.
- You should prepare a timeline of events and known information regarding the matter addressed “To: Counsel, Attorney-Client Privileged Communications” that is only sent to counsel. Even if you are still interviewing counsel, any communications are still protected by the attorney-client privilege. Before your initial call with counsel, it is always best to send the attorney via email a scanned copy of the notice, relevant paper or hard copy documents along with a timeline so that the initial call is a productive one.