When employers are faced with terminating employees in California, they often miss the numerous required notices and action steps they must take at or before the time of termination in order to comply with the law. In this presentation, Beth Arnese and I go over how to handle terminations in a legally compliant manner (not to mention as kindly and consciously as possible - which prevents lawsuits and bad karma).
Topics addressed include federal and state requirements for terminating employees, the necessary forms and notices, the California Unemployment Insurance Code, final wages, termination letters, COBRA and Cal-COBRA coverage, and severance pay and agreements.
A Modern Look at Contractors v. EmployeesDiana Maier
Whether you’re a business owner concerned with making the right distinctions when engaging people to work with/for you, or a lawyer responsible for advising clients on the contractor v. employee distinction, this presentation could save you a lot of grief and money down the line.
Marin County-based employment lawyer Diana Maier and Carlos E. Torres, a Hearing Officer for the California Division of Labor Standards Enforcement (DLSE), discuss which factors matter most in deciding how to classify workers in light of recent legal decisions that are shifting those factors. In addition to covering a broad overview of the contractor v. employee debate, they also discuss ethical considerations for lawyers considering the question of contractor classification, and assess whether the sharing economy is due for extinction in light of recent rulings against companies such as Uber.
Privacy Best Practices for Lawyers: What Every Law Practice Needs to Know Abo...Diana Maier
No matter what kind of law practice you have, you need to comply with privacy laws generally and lawyers' ethical duties with respect to privacy, specifically. In this presentation, legal ethics counsel Sarah Banola (Cooper, White and Cooper, LLP) and employment and privacy attorney Diana Maier (Law Offices of Diana Maier) deliver a primer on privacy law and teach you the key areas of privacy law and associated ethical obligations.
1099 v. W-2 Employees: What to Know and Why It Matters
By Patricia Godfrey of Oasis Outsourcing (www.oasisadvantage.com)
Presented at the April 2012 Lighthouse Speaker Series (http://lighthousegrowthresources.com/speaker_series.html)
www.lighthousegrowthresources.com
www.uncommonwisdomblog.com
A Modern Look at Contractors v. EmployeesDiana Maier
Whether you’re a business owner concerned with making the right distinctions when engaging people to work with/for you, or a lawyer responsible for advising clients on the contractor v. employee distinction, this presentation could save you a lot of grief and money down the line.
Marin County-based employment lawyer Diana Maier and Carlos E. Torres, a Hearing Officer for the California Division of Labor Standards Enforcement (DLSE), discuss which factors matter most in deciding how to classify workers in light of recent legal decisions that are shifting those factors. In addition to covering a broad overview of the contractor v. employee debate, they also discuss ethical considerations for lawyers considering the question of contractor classification, and assess whether the sharing economy is due for extinction in light of recent rulings against companies such as Uber.
Privacy Best Practices for Lawyers: What Every Law Practice Needs to Know Abo...Diana Maier
No matter what kind of law practice you have, you need to comply with privacy laws generally and lawyers' ethical duties with respect to privacy, specifically. In this presentation, legal ethics counsel Sarah Banola (Cooper, White and Cooper, LLP) and employment and privacy attorney Diana Maier (Law Offices of Diana Maier) deliver a primer on privacy law and teach you the key areas of privacy law and associated ethical obligations.
1099 v. W-2 Employees: What to Know and Why It Matters
By Patricia Godfrey of Oasis Outsourcing (www.oasisadvantage.com)
Presented at the April 2012 Lighthouse Speaker Series (http://lighthousegrowthresources.com/speaker_series.html)
www.lighthousegrowthresources.com
www.uncommonwisdomblog.com
There have been a number of new developments this year. Christina discusses new federal and state initiatives, new case law and other developments that directly affect employers.
Being an in house lawyer isn’t just about the law – perhaps it never has been.
Every six months at our in house lawyer sessions we give practical training on:
- what the law means for you (personally) and for your business
- tips on what to incorporate into your next contract, your next discussion with the HR department or your next board meeting
... and have been delighted to help cover what to say, do, draft and know what to avoid.
We’ll also be covering the black letter law:
- employment update – gender gap reporting – how, what, what the…? Sexual harrassment
- commercial law - changes in contract law and in particular what the courts have said about discretion in contracts – do you really have free choice, or are there limits?
- GDPR –you’ve very little time left – what are the quick wins you can deal with and high risk activities that you need to deal with.
Topics include the following:
- issues related to COVID-19 in the workplace, including paid leave rights and benefits, return to work standards, and work-from-home arrangements
- Supreme Court decisions on sexual orientation discrimination, Age Discrimination in Employment Act and Equal Pay Act
- new regulations under the Fair Labor Standards Act
- expansion of employee rights and employer obligations under Illinois Law
- upcoming anti-harassment training deadline
- legal requirements taking effect in the second half of 2020 and in January 2021
- the impact of a California court’s decision regarding gig workers
- and more…
The 2013 National Defense Authorization Act creates strong new protections for employees of federal contractors and subcontractors who “blow the whistle” on their own employers. The law encourages employees to report “gross mismanagement,” “gross waste,” “abuse of authority” and other misconduct related to federal contracts. Mark discusses these new protections.
Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants (...Financial Poise
You only get one chance to make a first impression, so you want to make sure your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/recruiting-and-hiring-including-restrictive-covenants-2020/
Is your company at risk of being told that your independent contractors are actually employees? If the Department of Labor breaks this news to you, what are the labor implications? What are the tax obligations? What are your legal obligations to a third party? Join our labor and employment and tax gurus for answers to these and other questions during this informative and practical webinar on avoiding worker misclassification and the repercussions if you do not.
This webinar will covers:
• What is COBRA?
• When does it need to be provided?
• What are the triggering events?
• How long does it have to be provided?
• What are notice requirements?
• Payment requirements
There have been a number of new developments this year. Christina discusses new federal and state initiatives, new case law and other developments that directly affect employers.
Being an in house lawyer isn’t just about the law – perhaps it never has been.
Every six months at our in house lawyer sessions we give practical training on:
- what the law means for you (personally) and for your business
- tips on what to incorporate into your next contract, your next discussion with the HR department or your next board meeting
... and have been delighted to help cover what to say, do, draft and know what to avoid.
We’ll also be covering the black letter law:
- employment update – gender gap reporting – how, what, what the…? Sexual harrassment
- commercial law - changes in contract law and in particular what the courts have said about discretion in contracts – do you really have free choice, or are there limits?
- GDPR –you’ve very little time left – what are the quick wins you can deal with and high risk activities that you need to deal with.
Topics include the following:
- issues related to COVID-19 in the workplace, including paid leave rights and benefits, return to work standards, and work-from-home arrangements
- Supreme Court decisions on sexual orientation discrimination, Age Discrimination in Employment Act and Equal Pay Act
- new regulations under the Fair Labor Standards Act
- expansion of employee rights and employer obligations under Illinois Law
- upcoming anti-harassment training deadline
- legal requirements taking effect in the second half of 2020 and in January 2021
- the impact of a California court’s decision regarding gig workers
- and more…
The 2013 National Defense Authorization Act creates strong new protections for employees of federal contractors and subcontractors who “blow the whistle” on their own employers. The law encourages employees to report “gross mismanagement,” “gross waste,” “abuse of authority” and other misconduct related to federal contracts. Mark discusses these new protections.
Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants (...Financial Poise
You only get one chance to make a first impression, so you want to make sure your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/recruiting-and-hiring-including-restrictive-covenants-2020/
Is your company at risk of being told that your independent contractors are actually employees? If the Department of Labor breaks this news to you, what are the labor implications? What are the tax obligations? What are your legal obligations to a third party? Join our labor and employment and tax gurus for answers to these and other questions during this informative and practical webinar on avoiding worker misclassification and the repercussions if you do not.
This webinar will covers:
• What is COBRA?
• When does it need to be provided?
• What are the triggering events?
• How long does it have to be provided?
• What are notice requirements?
• Payment requirements
Welcome to the Team! Recruiting and Hiring, Including Restrictive CovenantsFinancial Poise
You only get one chance to make a first impression, so you want to make sure your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
Part of the webinar series: PROTECTING YOUR EMPLOYEE ASSETS: THE LIFE CYCLE OF THE EMPLOYMENT RELATIONSHIP 2022
See more at https://www.financialpoise.com/webinars/
Recruiting and Hiring, Including Restrictive Covenants (Series: Protecting Yo...Financial Poise
You only get one chance to make a first impression, so you want to make sure your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/recruiting-and-hiring-including-restrictive-covenants-2021/
There are many legal liabilities a benefit plan administrator can face if he or she does not properly handle their plan. Here are the most important things to remember as you are acting as teh
If a company is in financial difficulty, its shareholde
rs, creditors or the court can put the company into
liquidation.
This information sheet provides general informa
tion for employees of companies in liquidation.
Employees should also read ASIC information sheet INFO 45. for more info, visit: http://www.svpartners.com.au/uploads/197.pdf
Watch our free one-hour webinar reviewing the rules for the new Individual Coverage HRA and the new Excepted Benefit HRA (ICHRA and EBHRA).
In June 2019, Treasury, DOL and HHS released final regulations that are effective for plan years beginning on or after January 1, 2020. These regulations created two new HRAs, Individual Coverage HRAs (ICHRA) and Excepted Benefit HRAs (EBHRA).
These new HRAs will be subject to ERISA and COBRA, but will not be subject to the nondiscrimination rules under Code Section 105(h). Any employer can offer these new HRAs to their employees. They can be offered to common law employees, but cannot be offered to self-employed individuals, partners and more than 2% S-Corporation shareholders.
Facilitated by ERISA attorney Larry Grudzien, and moderated by Chief Marketing Officer Julia Goebel, this webinar will cover the following:
-Why are these new HRAs so important?
-Which employees can be included or excluded
-What documentation is needed to be completed by employers to adopt them
-What reporting and disclosure requirements must be met
-What types of expenses can be reimbursed
-The pros and cons of establishing and participating in these new HRAs for employers
COVID-19 (Coronavirus): Your Business Questions AnsweredTom Willis
Over the last few weeks, we’ve received a lot of questions from our users about the legal issues surrounding COVID-19. From employment to tax relief, current circumstances mean that businesses are, and will inevitably be affected.
In this presentation Lawpath network lawyer Damin Murdock answers the common questions and issues faced by Australian business lawyers and the actions they can take to ensure the survival of their business in these uncertain times.
[ON-DEMAND WEBINAR] New Year, New COVID 19 Vaccine, New Unemployment Rules, N...Rea & Associates
Ringing in the new year is a lot different this time around, particularly if you are a business owner trying to make sense of human resources updates. The rules are a lot different from what they were a year ago and now business owners must shuffle through a slew of updated HR policies and best practices to ensure compliance with ever-changing legislation. Renee West, SHRM-SCP, PHR, senior manager and leader of Rea & Associates' HR consulting services practice, has been committed to following federal and state-wide legislation in order to provide you with key updates to ensure ongoing compliance in your organization.
During this free, hour-long webinar, Renee will go over:
- FFCRA Leave updates and unemployment extension information PUA unemployment details, and unemployment benefits
- COVID 19 vaccine resources for employers
- 2021 HR policies
- Best practices to mitigate risk in 2021.
- And more ...
For more insight into the HR considerations for businesses, visit https://www.reacpa.com
#ReaCPA #HRCompliance #COVIDCrisis
Small Claims 2017: Essential Law, Winning Strategies for Lawyers & Paralegals Evelyn Perez Youssoufian
An employment law primer for paralegals and lawyers, including: Jurisdiction, Possible Claims, Human Rights, Employment Contracts, Wrongful Dismissal, including how to calculate reasonable notice
The Impact of Communicable Diseases, Including Coronavirus, on the Workplace ...Financial Poise
When it comes to dealing with communicable disease-related issues within the workplace, planning is everything. What kinds of things might an employer do to lessen the impact of a communicable disease disaster on their business? Join this panel of experts as they explore these topics: (1) FFCRA-eligibility, hardship waivers, benefits required; (2) Increased employer medical screening, testing & temperature taking; (3) Managing remote work, how to assess eligibility for remote work (job descriptions, accommodations, electronic access); (4) Workplace communication--HIPAA, privacy, etc.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/the-impact-of-communicable-diseases-on-the-workplace-2020/
Employment Law: Managing a Global Workforce Across Multiple JurisdictionsGowling WLG
Gowling WLG Employment Law Seminar, November 2016
- Medical Marijuana in the Workplace
- Changing the Language in your Bonus Plans
- Hiring a Foreign Worker
- Managing your Global Workforce
Navigate New Legislation: The Road Into 2017benefitexpress
As new regulations kick in for 2017 and ACA reporting season is coming to a close, review all recent legislative changes. This webinar focuses on what you need to know for your 2017 benefits strategy.
Learn about new legislation from DOL, HHS, IRS, and EEOC. ERISA attorney Larry Grudzien will cover all relevant rulings since his previous webinar and host an interactive Q&A with the audience.
Employers can experience substantial cost savings and avoid liability when employee leaves are effectively managed through well-drafted policies and procedures. Laws such as Worker's Compensation, the Americans with Disabilities Act, and the Family and Medical Leave Act make compliance in this area a challenge for even the most experienced HR professional.
Join our risk advisors in a practical discussion on how to avoid the pitfalls employers encounter when managing employee absences. Attendees will learn how to apply best practices for leave management to actively control costs and minimize liability.
WINDING UP of COMPANY, Modes of DissolutionKHURRAMWALI
Winding up, also known as liquidation, refers to the legal and financial process of dissolving a company. It involves ceasing operations, selling assets, settling debts, and ultimately removing the company from the official business registry.
Here's a breakdown of the key aspects of winding up:
Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
Winding up is a complex legal and financial process that can have significant consequences for all parties involved. It's important to seek professional legal and financial advice when considering winding up a company.
How to Obtain Permanent Residency in the NetherlandsBridgeWest.eu
You can rely on our assistance if you are ready to apply for permanent residency. Find out more at: https://immigration-netherlands.com/obtain-a-permanent-residence-permit-in-the-netherlands/.
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
Military Commissions details LtCol Thomas Jasper as Detailed Defense CounselThomas (Tom) Jasper
Military Commissions Trial Judiciary, Guantanamo Bay, Cuba. Notice of the Chief Defense Counsel's detailing of LtCol Thomas F. Jasper, Jr. USMC, as Detailed Defense Counsel for Abd Al Hadi Al-Iraqi on 6 August 2014 in the case of United States v. Hadi al Iraqi (10026)
In 2020, the Ministry of Home Affairs established a committee led by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi. This committee was tasked with reviewing the three codes of criminal law. The primary objective of the committee was to propose comprehensive reforms to the country’s criminal laws in a manner that is both principled and effective.
The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
1. Law Offices of Diana Maier
Employment and Privacy Attorneys
www.dianamaierlaw.com
Terminating Employees in California
Presented by:
Diana Maier & Beth Arnese
2. 2
TODAY’S SPEAKERS
Diana Maier received her J.D. from
Stanford University Law School in
1998. She has been practicing law
for 18 years, 15 years in
employment law. In addition, Diana
practices privacy law and is IAPP
certified in both United States and
European privacy law (CIPP-US/E).
Diana also conducts workplace
investigations in Spanish and
English.
3. 3
TODAY’S SPEAKERS
Beth Arnese received her J.D. from
UCLA Law School in 2005. She
practiced law for over 10 years, at
both large firms and for the public
sector, before joining the Law
Offices of Diana Maier in 2016. She
specializes in litigation as well as
employment and privacy law. Beth
also conducts workplace
investigations.
4. 4
HOW MUCH NOTICE IS REQUIRED BEFORE TERMINATION?
• California is an “at-will” state, meaning that the employer or employee
can terminate the employment relationship at any time, with or without
cause.
• However, some employment contracts specify an amount of notice
that will be provided. In that case, there is a contractual obligation to
have a certain amount of notice, such as two weeks.
5. 5
OTHER CONSIDERATIONS BEFORE TERMINATION
• Review the original offer letter (if any). Are you following any specific
promises you made about termination?
• Review the employment contract (if any) and employment handbook
to make sure you are following the terms of the contract.
• Does your company have a policy of progressive discipline? Was it
followed in this case?
6. 6
WHY IS PROGRESSIVE DISCIPLINE STILL IMPORTANT
GIVEN THE AT-WILL STATUS OF CALIFORNIA?
• You can get employee buy-in; they feel that they've been treated
fairly, or at least are slightly less outraged when they are terminated.
• If you face an employment discrimination lawsuit, you have
documented, lawful reasons for the termination. This is critical
especially if there are extenuating circumstances (like the person was
on leave, or was older and had worked for the company for a long
time).
7. 7
WHY IS PROGRESSIVE DISCIPLINE STILL IMPORTANT
GIVEN THE AT-WILL STATUS OF CALIFORNIA?
• The best strategy is documenting performance issues from the
moment they occur, and showing the employee your documentation-
just have them sign off that they saw it. Also praise the positives.
• Employees can and do change. A termination might not be necessary,
but you won't know if you don't give a chance to find out what the real
issues are with a person's performance.
8. 8
ADDITIONAL RECOMMENDATIONS
• Make sure you are applying your procedures and policies consistently.
• Keep the termination confidential or tell only those who need to know.
• Respect the privacy of the person being terminated.
9. 9
WHAT ARE THE REQUIRED FORMS AND NOTICES?
Federal requirements:
• For employers with 20 or more employees, a Consolidated Omnibus
Budget Reconciliation Act (COBRA) notice and election form needs to
be provided to employees who are participating in the employer’s
group health plan and to any of the terminating employee’s
dependents on the plan.
10. 10
WHAT ARE THE REQUIRED FORMS AND NOTICES?
Federal requirements continued:
• If termination is due to a layoff or position elimination covered under
the WARN Act, notices need to be sent out 60 days prior to
termination.
11. 11
WHAT ARE THE REQUIRED FORMS AND NOTICES?
California requirements:
• The Department of Health Care Services requires employers with 20
or more employees to provide the Health Insurance Premium
Payment (HIPP) notice, DHCS 9061, to certain employees covered
under the program.
• EDD requires employers to provide their unemployment benefits
pamphlet, For Your Benefit, DE 2320, to all discharged or laid off
employees no later than the effective date of the discharge or layoff.
12. 12
IS A TERMINATION LETTER NECESSARY?
• Yes, California
Unemployment Insurance
Code 1089 requires
employers to give a written
Notice to Employee as to
Change in Relationship form.
• More detailed letters can be
provided if the employer
chooses.
13. 13
WHAT ARE THE REQUIRED FORMS AND NOTICES?
California requirements continued:
• Employers must notify any covered, terminated employees of their
Cal-COBRA continuation rights. Cal-COBRA must be offered to both
terminated employees of small employers (2-19 employees) and
terminated employees covered under federal COBRA when their 18
months of federal COBRA coverage expires.
14. 14
FINAL WAGES
• Employers must have the employee’s entire paycheck ready to go at
the moment of termination. This should include unused vacation,
which is considered wages in California.
• If the employee quits, the employer has 72 hours to provide a final
paycheck. It’s not an excuse if the employee storms out – it should be
sent to a home address if need be.
• Failure to pay the employee his or her final paycheck at the time of
termination will result in hefty fines many times the amount owed.
15. 15
WHAT ELSE IS INCLUDED IN FINAL WAGES?
• Expense reimbursements
• Commissions must be paid on the date of discharge for all
commissions earned
• For commissions not yet "earned," they must be paid immediately
upon satisfaction of condition precedent (i.e., customer payment)
• Non-discretionary bonuses or profit-sharing agreements
16. 16
CAN THE FINAL WAGES BE PAID BY DIRECT DEPOSIT?
• Direct deposits are allowed with written authorization, but that
authorization immediately terminates when an employee quits or is
discharged.
• If the employee voluntarily provides written authorization for the
specific deposit of the final payment, direct deposit of the final
paycheck is allowed. The same rules about timing still apply.
17. 17
HOW LONG DOES MEDICAL COVERAGE CONTINUE?
• Group coverage can be continued under COBRA for 18 months
following termination.
• Special circumstances can extend coverage to a maximum of 36
months under COBRA.
• For example, if a second event occurs such as divorce or death of
employee.
• Under Cal-COBRA, coverage can continue for up to 36 months.
18. 18
UNEMPLOYMENT INSURANCE
• If a former employee files for unemployment insurance, then EDD will
mail the employer the form "Notice of Unemployment Claim Filed." An
employer has 10 days to contest in writing.
• If the employer contests, the response should contain all relevant
facts showing that the employee is not eligible.
• Employer rates go up if the former employee takes unemployment
insurance.
19. 19
WHEN IS A FORMER EMPLOYEE INELIGIBLE FOR
UNEMPLOYMENT?
• Termination for misconduct (this is a very high standard - failure to
perform/ordinary negligence is not misconduct)
• Voluntarily quitting without good cause
20. 20
IS SEVERANCE PAY REQUIRED?
• No, California does not require severance pay for at-will employees
when either the employer or employee terminates the employment
relationship.
• Employers can still offer severance if they would like, for reasons such
as:
• Avoiding potential disputes by having the employee release claims
in exchange for receiving severance pay
• Making a layoff more bearable
21. 21
SHOULD THE EMPLOYER ASK THE EMPLOYEE TO SIGN A
SEVERANCE AGREEMENT?
• Pro:
• Employees waive their right to sue
• Con:
• Employer has to give something to employee that they would not
otherwise be entitled to (i.e., additional money, paying for benefits to
continue)
22. 22
DRAFTING A SEVERANCE AGREEMENT
• Tip #1: If the employee is over 40, special considerations apply for a
valid waiver of claims under the ADEA.
• Include language in the severance agreement that the employee
acknowledges waiver of claims under the ADEA and specify that:
• Employee should consult with an attorney prior to executing the agreement;
• Has up to 21 days to consider the severance agreement and up to 7 days
following the execution of the agreement to revoke it; and
• The agreement is not be effective until the revocation period has expired.
23. 23
DRAFTING A SEVERANCE AGREEMENT
• Tip #2: If you have a “group layoff” with employees over 40, there are
additional requirements if you want employees to waive their claims
under the ADEA.
• The employer must give employees written notice of the layoff and at least 45
days to consider the waiver before signing it.
• There are many additional rules about information the employer is required to
provide, such as "the decisional unit" - the class, unit or group of employees
from which the employees who were and were not selected for the layoff.
• The EEOC’s guidance and sample release is worth reading if you are in this
situation: www.eeoc.gov/policy/docs/qanda_severance-agreements.html
24. 24
DRAFTING A SEVERANCE AGREEMENT
• Tip #2 Continued: If you have a “group layoff” with employees over 40,
there are additional requirements if you want employees to waive their
claims under the ADEA.
• Employers also have to disclose:
• eligibility factors for the program;
• the time limits applicable to the program;
• the job titles and ages of all individuals who are eligible or who were
selected for the program; and
• the ages of all individuals in the same job classifications or organizational
unit who are not eligible or who were not selected.
25. 25
WHAT SHOULD BE EXCLUDED FROM A SEVERANCE
AGREEMENT
• Employees cannot waive their right to file a charge with the EEOC,
DFEH, or any other agency.
• No agreement between an employee and employer can limit an
employee’s right to testify, assist, or participate in an investigation,
hearing, or proceeding conducted by the EEOC under the ADEA, Title
VII, the ADA, or the EPA.
• Any provision in a waiver that attempts to waive these rights is invalid
and unenforceable.
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OTHER EXCLUSIONS FROM SEVERANCE AGREEMENTS
• Workers’ compensation claims: Waiver of these claims requires a
specific form release that must be approved by the Workers’
Compensation Appeals Board.
• Claims for wages owed: An employer cannot require an employee to
sign a release of rights to wages that are undisputedly due. A valid
release has to offer something to which the employee was not already
entitled.
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TIMING OF LAWSUITS
• Employees in CA have one year from the date of the alleged discriminatory
act to file an administrative complaint of employment discrimination under the
California Fair Employment and Housing Act (“FEHA”).
• If an employee chooses to file an administrative complaint with the U.S. Equal
Employment Opportunity Commission (“EEOC”), the employee must do so
within 300 calendar days if a state or local agency enforces a law that
prohibits employment discrimination on the same basis (CA does).
• Employees then have one year after receiving a right to sue letter to file a
lawsuit.
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OTHER TIPS ABOUT TERMINATION
• Do tell your employee why you are terminating her! Otherwise, she may make up a
reason that’s not favorable to you.
• Do offer severance and a release if you have a potentially litigious plaintiff.
• Make sure you have a policy in your handbook or elsewhere, with a separate sign off on
it, that whatever an employee does with company hardware or software, or on company
time, is property of the employer. This helps you legally get access to their files, emails,
and accounts once they leave.
• Be aware that, even after termination, an employee is entitled to his personnel files (and
records that relate to the employee’s performance or to any grievance concerning the
employee) if they request it in writing. If you don't provide the files within 30 days, they
can get penalties.
29. 29
• California Department of Human Resources’ “Consolidated Omnibus Budget Reconciliation Act (COBRA),” available at
https://www.calhr.ca.gov/employees/Pages/cobra.aspx
• California Governor’s Office of Business and Economic Development’s “At-Will Employment and Wrongful Termination,”
available at
http://business.ca.gov/StartaBusiness/AdministeringEmployees/EqualEmploymentOpportunityLaws/AtWillEmployment.aspx
• Law Offices of Diana Maier’s “California Termination FAQ,” available at http://dianamaierlaw.com/california-employee-
termination-faq/
• Law Offices of Diana Maier’s “Top 10 Things to Consider When Terminating Employees,” available at
http://dianamaierlaw.com/things-to-consider-when-terminating-employees/
• Law Offices of Diana Maier’s “What’s Required When You Terminate Employees in California?” available at
http://dianamaierlaw.com/whats-required-when-you-terminate-employees-in-california/
• Society for Human Resource Management’s “What Notices or Forms Must Employers Provide to Terminating Employees in
California?” available at http://www.shrm.org/templatestools/hrqa/pages/californianoticesforms.aspx
• State of California’s Employment Development Department’s “Misconduct MC 5,” available at
http://www.edd.ca.gov/uibdg/Misconduct_MC_5.htm
RESOURCES
31. 31
CONTACT INFORMATION
Law Offices of Diana Maier
www.dianamaierlaw.com
Diana Maier
415-515-1707
diana@dianamaierlaw.com
Beth Arnese
415-283-8970
beth@dianamaierlaw.com
For attorneys seeking MCLE credit:
Email your Bar Number to
Lauren McMahon at
lauren@dianamaierlaw.com