If I am laid off, will I get paid for accrued vacation time? What about the expenses I put on my personal credit card for a company business trip? Is my employer required by law to give me notice of a mass layoff?
Lately, I’ve been getting lots of e-mails from individuals who just lost their jobs, or who are about to be let go, wondering what they will and won’t get after the exit interview. And JustAnswer.com, a Web site that provides expert advice on everything from legal to auto repair questions, has seen a spike since October in legal questions from readers about layoffs, unemployment and severance, says Aimee Macaitis, a spokeswoman for the firm.
With jobless claims at a 14-year high and expected to rise, this is a good time to figure out what you’re entitled to if you’re laid off — or if you sense a pink slip may be in your future.
Here’s a layoff primer to get you started.
1. Unemployment benefits
Most full-time employees who lose their jobs through no fault of their own are eligible for unemployment benefits, depending on how long they worked and how much they earned. (Contractors and the self-employed generally are not eligible for benefits.)
Eligibility requirements vary by state, but in most cases, you must work four out of the last five completed quarters before you file for benefits. The money you receive is based on the money you made over the previous 52 weeks.
In most states, you can be paid benefits for up to 26 weeks.
Last month, President George W. Bush signed an unemployment benefits extension that gives workers an additional seven weeks of jobless payments. In states with the highest unemployment rates, those who are out of work can get an additional 20 weeks of payments.
If you are laid off, you need to quickly file a claim with your state unemployment insurance agency. In many states, you can do that over the phone or on the Internet. (Find your state's agency.)
After filing the claim, expect to wait three weeks or more before receiving your first check.
2. Unused sick days, personal days and vacation time
Few laws require employees to be paid sick days, personal days or vacation time. Lewis Maltby, president of the National Workrights Institute, says it’s all a matter of contractual obligations on the part of your employer.
If a contract you signed when you were hired says you’re entitled to all of your unused sick time when you leave a company, then you should expect to be reimbursed.
Employee handbooks may also spell out this type of policy, he says, and courts often view a handbook as a contract.
Another factor that can work in your favor is if you can prove that your employer regularly pays out sick time and vacation time when other workers leave. “Then you have an argument that it’s a company policy. They can’t single you out,” he says. “But they can change the policy and decide that no one from this day on will be paid for unused time.”
California is one state that requires employers to immediately pay workers accrued vacation time at the time of termination. Check with your local labor department to find out what the laws are in your state if your employer refuses to pay.
3. Severance pay
Again, no federal or state laws require employers to pay out severance, but if that is the practice at your employer, this is how it might work:
Employers typically spell out their severance policy, including details on the amount and timing, during a reduction in force, says Sheri Stolp, owner of human resource consulting firm The Stolp Group.
“A typical severance policy would include paying the employee one week for every year of employment,” she explains. “Some companies choose a more generous route and provide two or three weeks per year.”
Even if you receive a severance package, you should still file for unemployment. However, you usually have to exhaust your severance benefits before you start getting a check from the government.
4. Unpaid bonuses
If you’ve earned a bonus, you should be paid the bonus.
“Employees are entitled to collect ‘earned’ bonuses or incentives following a layoff of employment, with one caveat: the bonus would have to fall under the ‘earned’ definition per their employer bonus statement,” says Stolp. Bonus statements are normally provided annually, or at the start of employment, and spell out the terms and conditions of bonus calculations and payout practices.
Another exception, she adds, would be if your company has filed for bankruptcy or liquidation.
Since bonuses are viewed as compensation, she says, they are covered by labor laws. So you should contact your local labor department if a former employer is denying you what you’re owed.
“If the bonus information was only supplied verbally, the claim needs to be filed within two years,” she adds. “If the bonus information was spelled out in written form, per the annual bonus statement or offer letter, the exiting employee has up to four years to file the claim for unpaid compensation.”
5. Expenses owed
If you incurred expenses during a business trip for your company, or you purchased a work laptop on your credit card and suddenly find yourself out of work, you’re generally entitled to be reimbursed even if you’re laid off.
“Reimbursement of expenses laws vary by state,” says Jerry Hathaway, attorney at corporate employment firm Littler Mendelson. “Generally, they must be repaid, even if the employee is laid off while out on company business.”
Many states, he says, view “business expenses as ‘wages’ and penalties attach for non-payment. In New York, the penalty would be 25 percent, except for higher paid exempt employees, who would have a contractual cause of action.”
In a question to JustAnswer.com, a paralegal from King of Prussia, Pa., wanted to know if he could have his employer “buy out my Blackberry contract that they made me sign up for.”
The advice from lawyer Paul Moretti, who answers questions on the site, was this: “You have a decent argument for them to buy out the phone contract since you were forced to acquire it and you did so, thus you detrimentally relied on their paying for the phone.”
If an employer refuses to pay up, Maltby advises workers to take their cases to small claims court since many of these types of disputes are fairly low dollar and don’t need a lawyer to resolve.
6. Notice before layoffs
If the company you work for has more than 100 workers, then in most cases the firm is required to give employees 60 days notice and pay in the event of a mass layoff.
The federal law, known as the Worker Adjustment and Retraining Notification Act, or WARN Act for short, requires employers to notify employees. However, there are some restrictions.
The layoffs must affect 50 or more workers and at least one-third of employees at a particular facility or impact 500 or more workers, says Stuart Miller, a partner with the Lankenau & Miller, a law firm that represents workers.
About two dozen states have their own notification laws, says Miller, so it’s a good idea to check with your local department of labor to see what the provisions are in your state.
If a company shuts down suddenly because of a dramatic event, such as losing a government contract that represented 90 percent of a firm’s business, then workers may not be entitled to the notice. But just because a firm has filed for bankruptcy, or lays off workers because of the bad economy, does not mean workers are not entitled to notice and pay, Miller says.
Unfortunately, if an employer refuses to provide you notice, there is no government body that enforces the WARN Act. Your only recourse is the legal system.
The Workrights Institute’s Maltby says employers routinely violate the WARN Act. “If you’re involved in a plant shutdown or big layoff and didn’t get 60 days warning, you need to check into it. Call us or a lawyer.”
If you have any questions about what you’re owed now that you’ve lost your job, please e-mail me at firstname.lastname@example.org.
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