What laid off workers need to know :
Government Programs available to unemployed workers
- Stimulus Package COBRA Subsidy: President Obama's Stimulus package provides tax free money to laid off workers to help pay for medical insurance under COBRA. Employees who lose their jobs in an involuntary termination such as a layoff, but not a termination based on gross misconduct, during the time period September 1, 2008 through December 31, 2009, will be entitled to a government subsidy of 65% of their monthly COBRA premium payment for nine months. The subsidy is tax free.
- Unemployment Insurance Benefits Have Been Extended: Unemployment benefits have been increased as a result of the new Stimulus package. In California, employees will receive a supplemental $25 added to regular benefit checks through July 3, 2010 and the number of weeks an employee can receive unemployment benefits has been extended from 26 weeks to 79 weeks.
- Severance benefits are not required by law. However, most employers are offering severance benefits in connection with layoffs. Generally, employers offer some form of monetary compensation as severance. If you are laid off and not offered severance, you should ask for it. The amount of severance offered varies widely depending on the size of the company and the employee's position and length of employment.
- You will be asked to sign a release agreement to get your severance benefits. When you sign a severance agreement, you are being asked to release all your claims against your former employer so you do have leverage to negotiate for something in return.
- If you are offered severance and presented with an agreement to sign, you should never sign it on the spot. Take it home and review it carefully. Determine whether you will need a lawyer to review it for you to ensure you are not giving up any benefits or rights and to help you negotiate a better package. Don't make any statements to your former employer until you've carefully reviewed the document and thought about it. Don't say anything in the heat of emotion. Stay calm and professional.
- If you are over 40, then under the Older Workers' Benefit Protection Act of the Age Discrimination in Employment Act, you must be given at least 21 days (45 days in a layoff of a group or class of employees) to consider the agreement and then 7 days to revoke it once you've signed it. In a layoff of a group or class of employees, you must also be given written notice of the ages and positions of those laid off and those not laid off in a particular organizational unit or job classification, so you can review it to see if there are patterns of age discrimination.
- If you are negotiating on your own, think who would be the best person in the company to speak with, your boss or manager or someone in HR. Who would be sympathetic to you but also have authority to give you more severance?
- Be sure to review your employment contract or offer letter as well as the employee handbook to see if you are contractually entitled to severance. Check whether there is a company policy, past practice or severance plan or program that would entitle you to severance. See if you can find out what employees have gotten in the past.
- In asking for more severance, you should consider your longevity of employment and what you have done for the company. This may give you ammunition. Have you given your life to this company? Have you made a lot of money for the company? Have you recently closed a big deal for them? You can argue that in this economy it will take you a long to get a job and ask for a severance to bridge you into your next job.
- You can ask for things besides just monetary compensation as severance. Ask for continued health benefits and outplacement (the hiring of a company that helps you with your resume and job search and coaches you to find a job). Ask for perks such as your laptop, your cell phone and number, payment for continued membership in a professional society, and ask to keep your company email or use of your office while you job hunt.
- You can ask for severance in a lump sum or ask to stay on as an employee or consultant during the severance period so you can look for employment from a position of employment. You will not be able to collect unemployment until your employment terminates but the fact that you are receiving severance will not prevent you from getting unemployment benefits.
- Try to get a mutual release, meaning your employer releases you from all potential claims as well as you releasing them.
- Be sure you are not giving up any vested employment benefits, such as pension, profit sharing, stock, stock options or bonus. Review your retirement/pension agreements, stock agreements and bonus or profit sharing plans carefully. If you are losing pension or stock benefits or getting reduced benefits or losing your bonus, you may have leverage to negotiate for more money instead to make up for this.
- Be sure there are no illegal non-competition (non compete agreements are illegal in California) or oppressive or illegal non-solicitation agreements (agreements prohibiting you from soliciting clients are not legal unless necessary to protect the company's trade secrets) in the severance agreement that will prevent you from getting another job.
- You can ask that your employer not contest your claim for unemployment benefits if that is an issue. It is an issue if you voluntarily resign or are terminated for misconduct.
Yes, if you've been fired, you should ask for severance and consider hiring an attorney to evaluate your legal claims and to negotiate a settlement for you which might be in the nature of what you should have gotten as severance. Once you've been fired, you may have damages that include lost wages and benefits and possibly damages for your emotional distress and for attorney's fees incurred.
Do you need a lawyer to help you with severance?
It is a good idea to hire a lawyer. The lawyer can explain the terms of the legal documents to you and can evaluate your legal claims to determine if you have been wrongfully terminated or otherwise treated unlawfully (subjected to discrimination). The lawyer can negotiate your severance for you or can coach you behind the scenes so that your employer does not know you are getting help until absolutely necessary.
Tips on Exiting your Employment
- Be careful what you say about your former employer so as not to disparage the company. It can come back to haunt you and can hurt you in your job search because you will seem negative to your new employer. You may also lose your severance benefits if you've contractually agreed to non-disparagement.
- Be careful not to take any confidential or trade secret documents or information from your former employer and be careful not to disclose any confidential information you learned in your employment to a new employer.
- Always get a copy of your personnel file before leaving a job. Be sure you know the contents of your file and there is nothing in it you haven't seen. You are entitled by law in California to copies of any documents in your file that you have signed and you are entitled to review the complete contents of the file.
- Be sure you understand your former employer's reference policy. Try to get a letter of reference or agreement from someone you trust to give you a positive reference.
- Be sure you've been paid your wages and all accrued and vested vacation and/or PTO.
- Always get a copy of your personnel file before leaving a job.
- Understand your employer's reference policy. Be sure you know what is going to be said to prospective employers. Will your employer say you are subject to rehire if asked?
- If you have been terminated and not been offered severance, don't be afraid to ask for severance in the form of continued salary and health benefits You will not be able to apply for unemployment benefits until your employment ends, but receiving severance benefits will not affect your right to get unemployment if your employment has terminated.
- If you receive a severance agreement, don't sign it on the spot. Take it home and review it carefully. Determine whether you will need a lawyer to review it to ensure you are not giving up any benefits or rights and to help you negotiate a better severance package.
- You can hire a lawyer to coach you through the process behind the scenes so that your employer does not know you are getting help until absolutely necessary.
- When you sign a severance agreement, you are being asked to release all your claims against your former employer, so you do have leverage to negotiate for something in return. Think what you can offer to your company to help you get what you want in terms of more or better severance.
- Sometimes you can ask to stay on as a consultant during the severance period so you can look for employment from a position of employment, or work part time or reduced hours during the severance period so that you stay employed. You can offer to train your replacement.
Under the Stimulus package signed into law by President Obama this year, employees who lose their jobs in an involuntary termination such as a layoff, but not a termination based on gross misconduct, during the time period September 1, 2008 through December 31, 2009, will be entitled to a government subsidy of 65% (of the monthly COBRA premium payment the former employee makes) for nine months provided the employee meets certain conditions.
Unemployment Insurance Benefits in California
Unemployment benefits have been increased as a result of the new stimulus package. In California, recipients of unemployment benefits will receive a supplemental $25 per week added to regular benefit checks. This benefit will continue to be paid until July 3, 2010. In addition, the stimulus package increased the number of weeks an eligible employee may receive benefits from 26 weeks up to an additional 33 weeks or a total of 59 weeks (which may be extended further).
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About Brenda F. Biren:
Brenda F. Biren specializes in employment and discrimination law. She has represented both plaintiffs and defendants in employment litigation and has given broad based employment advice and consultation to the firm's individual, corporate and business clients. She has provided personalized attention to these clients, guiding them through all phases of the employment relationship as well as litigation when that has been the result. She has drafted policies and procedures, handled hiring, discipline and termination of employees, negotiation and drafting of severance agreements, executive and other employment contracts, independent contractor agreements and proprietary information agreements. She has advised companies regarding compliance with wage and hour laws and anti-discrimination laws, including compliance with disability laws and state and federal family and medical leave acts. Ms. Biren has also represented individual employees in these areas and in both litigation and pre-litigation settings. Ms. Biren's litigation experience has been extensive. She has represented both employees and employers in cases involving wrongful termination, discrimination based on age, race, sex, national origin, disability, sexual harassment, retaliation, violation of public policy and related claims. She has provided representation in mediations, arbitrations, and trials, and has tried administrative claims before the California Labor Commissioner, the Department of Fair Employment and Housing and the Equal Employment Opportunity Commission. In 1996, she was co-counsel in a wrongful termination and age discrimination trial in Alameda County Superior Court, Whiting v. Hunter Engineering Co., and received a large jury verdict.
Ms. Biren's clients have included individual employees, including executive and professional employees as well as small and large businesses and corporations. Sayad & Biren, Attorneys at Law, specializes in employment and discrimination law. The firm provides broad-based employment advice and representation to individuals and companies in all aspects of employment and discrimination law, including litigation. In addition, the firm provides alternative dispute resolution services (ADR) and white collar criminal defense representation. The firm's partners are Pamela M. Sayad and Brenda F. Biren. At the time the firm was founded in 1983, it was one of the first law firms in San Francisco to specialize in employment and discrimination litigation. Since that time, the firm has resolved numerous employment cases in trial, mediations and arbitrations, as well as in negotiated settlements. Client satisfaction has been a hallmark of the firm's practice that has been maintained over the years. Both partners pride themselves on giving personal attention to their clients and to maintaining a high level of availability and responsiveness.