Employment Law Blog

Breakdown Triggered by Shaming at Work

Wrongful dismissal case was mediated for business owner-turned-employee struggling with mental illness George grips the metal rail of his hospital bed and tries to raise himself enough to glimpse the clock behind the floral arrangements of well-wishers. “How long have I been here?! My boss will be furious!” He feels the familiar panic rising in his throat, despite sedation. He can picture his boss polishing his collection of dress shoes, his cleaning kit methodically laid out on his huge oak desk next to his vintage desk-clock… Time! George’s eyes snap back to the hospital clock. Time to get back to the office! His wife, Sharon, gently but firmly pushes him back on the bed as he struggles to rise. “The doctor said more bed rest,” she quietly reminds him. Impossible! Shame floods George’s system; he swears he can feel hot shame coursing through his veins. His mind races back over the past year… Type A success Previously, George had never struggled with anything in his life. A golden boy from childhood in the Napa Valley, and a Stanford MBA graduate, his success with his first shot at starting a business felt as natural to him as everything the overachiever had ever done. Shortly before establishing his technology firm at age 26, George married his high school sweetheart. Over the next six years, he added employees as he created children: 80 staff; a daughter and a son. George felt well supported at home and at work. Life was great; super busy, but a good kind of stress. The kind where you’re humming with energy that drives you out of bed raring to greet each day. Still, entrepreneurs are always hungry, and George was no exception. He wanted more, always more. When the opportunity of starting a related, but untried, business came along, he couldn’t resist. He rushed the decision, and financed the second startup with venture capital. Too much too soon Within a year, he was overextended with debt, putting his original company in jeopardy. He had to lay off staff and kill a planned expansion. Another six months on, George was unable to stop the bleeding; he folded the side business, and sold his beloved first company to a multinational corporation hovering around his territory. Offered an executive position at that corporation, George reluctantly took it. He had a family to provide for, after all, and maybe he could help steer the ship he used to captain? He didn’t have any other options, anyway. Inside, though, George loathed himself for hurting his employees and his family, for letting his greed and ambition get in his own way. His wife and friends assured him all would be well, but George could only see the chipping away of his golden reputation. First breakdown The stress built up – only this time, it wasn’t the good, motivating kind of stress. George took up smoking cigarettes again, a habit he’d given up after college, hiding in the garage so his kids wouldn’t catch him. He started hitting the snooze button, repeatedly, every workday morning. Then George found himself having to call in sick to his new employers, paralyzed in bed with the curtains drawn. He hardly ate, complained that his limbs felt like a hundred pounds each. Sharon had never seen George in anything but hyper-speed since she met him at 17. She was alarmed but kicked into action – fast-tracking a psychiatrist referral and driving George to his appointments. An antidepressant prescription started to work, and he dusted off his briefcase. His old zip back, racing around between appointments, George brought his new bosses a new big idea each week. He was sure they would start reaping the benefits of his experience, his innovative thinking, and how he motivated and supported the other employees. George even persuaded his new employers to let him co-manage his pre-existing clients. He was promoted, got a raise. He was elated. Tough boss Then, The Colonel arrived at George’s workplace. The ex-Marine sales executive arrived with that nickname bestowed by previous underlings who’d born his iron leadership. His style was to yell at staff in front of their peers. Rarely did a meeting end without The Colonel tearing a strip off someone – often George. The Colonel didn’t hide his contempt; he shamed George publicly. The Colonel’s face, twisted in angry sneering and flushed from shouting, kept appearing in George’s dreams. “What kind of man messes up a perfectly good company that he started?…Once a loser, always a loser!” George would wake up with a heavy weight in his chest; workdays he was hitting the snooze button again, and a bottle of scotch too with growing frequency. The antidepressant pills didn’t help. He took the rest of his accrued sick days and holidays, and stayed in bed. He stopped eating again, stopped going to his psychiatrist appointments. Sharon called his doctor, and together they agreed to check George into the city hospital’s psychiatry ward for supervision and treatment. George was diagnosed with bipolar disorder (formerly known as manic-depressive) and prescribed new meds. He and Sharon hugged each other with relief, the first time in a long while they’d felt close. George called his employer to let them know he was being treated for a “serious medical condition.” His shame kept him from naming the disorder or disclosing that he was hospitalized. George begged the sympathetic president not give up on him. George’s bed rest was anything but restful. Released from the hospital, he cut in half the amount of time off his doctor had ordered. What would The Colonel think and say about him at the office? Sharon fought George unsuccessfully over the early return, in front of the kids, something they never did. Back at work, George redoubled his efforts and won deal after deal. He worked a punishing amount of hours – late evenings with clients, weekends at the office. He got sloppy taking his meds and starting into acute mania, making erratic decisions and risking […]

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Employment Law Blog

Fired at Will – You Can Lose Your Job for Any Reason

You might feel that you have cannot be fired without a good reason. Many people feel the same way. But the brutal truth is that you can be fired for any reason or no reason. This is due to the employment at will rule.  In order to understand this rule better, lets take a look at a real word example at America’s favorite company – Apple. An Apple iPhone engineer was fired because he allowed his daughter to vlog about the yet unreleased iPhone X.   The daughter, Brooke Peterson, visited her dad at Apple’s offices in Cupertino, California in September.   Her dad showed her a prototype of the new iPhone X over lunch at the Mac Cafe.   She filmed the phone and some of its features and then published the video on Youtube.   At the time, her Youtube channel had very few followers but the video went viral after it was discovered. Ms.  Peterson removed the video as soon as Apple asked, but it was too late.   It had spread across the internet.  Then she published another video on her personal Youtube channel explaining her screw up.   She was truly sorry, but her dad was unemployed. Apple expressly prohibits filming at their offices and is famously secret about releasing details of new products.   The video breached Apple’s confidentiality rules. Was the firing legal? Yes, Apple was free to fire the engineer because he allowed a family member to violate company rules.   The engineer was an employee at will which means Apple could fire him for any reason, or no reason.   But Apple had a good reason to fire him. The Employment at Will Rule This is a good example of the employment at will rule in action.  The employment at will rule provides that an employee can be fired at any time, for any reason.  Likewise, an employee is free to quit their job at any time, for any reason.  It’s a two way street.   Both employee and employer are free to end the employment relationship at will.   People often think that a company needs a good reason to fire an employee or that fairness is required.   The reality is that employees can be fired for any reason, or no reason at all.   Fairness is not required.  It might seem unfair to fire the Apple engineer over his daughter’s mistake, but it was perfectly legal.  Apple had every right to fire the engineer because he broke their rules. What should the engineer do now?   Call Samsung or Google to see if they are hiring phone engineers.  The engineer should be free to work for a competitor like Samsung because non-compete agreements are illegal in California. This story got a lot of attention in the press.  Here are few more posts on the topic. Engadget ReCode The Verge

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Employment Law Blog

Silicon Valley Sexual Harassment

Silicon Valley sexual harassment is getting a lot of attention lately.   Although it has been an issue for a long time, many women in the industry have recently shared their sexual harassment stories.  As a result, a growing number of executives accused of sexual harassment are stepping down from their positions. One cannot help but wonder, what prevented women in Silicon Valley from reporting sexual harassment at their companies before and what has influenced them to speak up now? Silicon Valley sexual harassment has been quietly endured for decades.  It has been supresed because the sexual laws are ineffective.  The laws and risks associated with sexual harassment issues have deterred women in the tech companies from speaking up. In Burlington Industries, Inc. v Ellerth, the US Supreme Court created a two-part affirmative defense for supervisor sexual harassment. Essentially, as long as there is a sexual harassment policy in the company, an employee must first report a sexual harassment claim to the company or the company’s human resources department. If the company does not address the issue after it is reported, the employee may have a viable sexual harassment claim. If the alleged victim does not report it to the company first before reporting it to anyone else, the employer can use the Ellerth defense and the employee will most likely not have a claim. A Fear of Retaliation for Reporting Sexual Harassment In practice, the Ellereth defense puts women in an uncomfortable position in the workplace. Many women do not feel comfortable reporting sexual harassment because of the risks associated with it. It is widely common for women to face retaliation from the employer once they complain about supervisor sexual harassment. Although federal law sets restrictions on employer retaliation, employers find creative ways to retaliate. For example, if an employee reports that she has been sexually harassed by a supervisor or someone with an executive role, and no corrective action is taken, an employer could retaliate by creating a hostile environment for the employee, denying any promotions, or finding a trivial reason to fire her.  Additionally, her career in general will be negatively impacted. If other employers hear of her sexual harassment complaints, they may avoid employing her.   Not everyone is ready to risk their career to report sexual harassment that will probably be ignored. Therefore, many women stay silent, whether they are a victim or a witness, to maintain their position at work. Silicon Valley sexual harassment victims have undergone the same dilemma that many harassment victims go through in the workplace. In this male-dominated industry, many Silicon Valley sexual harassment complaints get overlooked and then, in several cases, women who have issued complaints noticed there has been a negative shift in how they are treated in the workplace afterwards.  Before, they were afraid of reporting the harassment they experienced; however, many women in the tech industry are sharing their stories, despite the backlash they may face. They hope that the growing number of people sharing the experiences with the public will bring more attention to this toxic culture and eventually force a change in how sexual harassment is handled in the technology industry. Although there is more attention being brought to Silicon Valley sexual harassment, it will have very little effect on how harassment is handled in the industry. Recently, those that have been exposed for sexually harassing employees have stepped down from their positions, but the actual companies have not faced major repercussions from it. They are merely losing a couple of executives. Possibly, if they notice a massive monetary loss associated with Silicon Valley sexual harassment, the employers may be compelled to make a noticeable difference in how sexual harassment issues are handled to please their customers. Until then, they will continue to band aid the issue by firing those accused of sexual harassment by the victims who have shared their experiences with the public rather than altering how sexual harassment claims are handled. This article was researched and written with Devona Adjei-Baafuor who is working with The Ottinger Firm as an intern.

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Employment Law Blog

FMLA Retaliation Cases

FMLA retaliation cases are potent weapons that can flip the balance of power in favor of employees.   Employees can really stand up for themselves and recover good settlements.   This video explains why these cases are so powerful for employees and bad for employers. You can also read a transcript of the video below: Hi, I’m Robert Ottinger. I’m an employment lawyer with the Ottinger Firm and we represent executives and employees. Now I’m here today with my dog Lake to talk about one of my favorite kinds of employment cases and they’re called FMLA retaliation cases and these cases are dynamite for employees and nightmares for employers. Now, what exactly is an FMLA retaliation case, you may be wondering? Well, the FMLA, as you may know means Family Medical Leave Act. And this law’s there to give people the right to take a little bit of time off if they’re sick or if maybe one of their close relatives like your mom or dad or your spouse or your child is sick. It gives you the right to take some time off and deal with that. Some companies though, they don’t want to be bothered. If they have an employee who’s sick themselves or has a sick relative and they need time off, they just fire the person. It happens a lot. So that’s the core of FMLA retaliation. So, now why are these cases so great? Why are they one of my favorite kinds of cases? Well there’s a few reasons. First of all, the law creates a presumption of guilt for a company that fires an employee while out on FMLA leave or within 90 days of returning from FMLA leave. Now that’s incredible. That means if you’re fired while you’re on leave or soon after you return from leave, the law assumes the company fired you because you were out on FMLA leave. That’s incredible. The burden shifts at that point back to the company and they have to sort of come up with a good reason to explain why they really fired you. The second reason why they’re so strong, why they’re so great, is that unlike almost all other federal employment law cases out there, with an FMLA case you don’t have to file first with the Equal Employment Opportunity Commission. That’s a real hassle. It’s a, kind of a worthless, procedural hurdle that’s there for most all of their federal employment cases. But no so with the FMLA. You can file a lawsuit against your company immediately and this gives you a lot of power. You can actually pose a real threat to a company that fires you if you’re out for out on FMLA leave. Now with these two things, the fact that there’s a presumption of guilt and the power to file a case immediately, it puts the ball in your court. Because if those things happen to you, if you’re fired while out on leave or soon after you return, your case is so simple. All you have to prove is that you were fired while out on leave or soon after you returned. Once you prove those two things, and they’re not in dispute. There’s never a dispute about a person being on FMLA leave or not, or that they were fired. They’re uncontested. So right off the bat, the burden shifts to the company. Now they have to explain why they fired a person while they’re out sick or caring for sick relatives. And how does that make the company look? I mean why in the world would a company have to fire someone while their sick, or while their mom is sick, or while their dad is sick, or their child is sick? It’s a terrible thing for a company to do. And so they have to explain to a jury why they did this terrible thing. And they have to, they better have a really good reason for it. It better not be linked at all to your leave. Otherwise, they’re guilty. And finally with the FMLA, if you prove that this happened, the companies are required to pay you two times what you lost. That’s statutory required double damages. If you get fired and you lose $50,000, the company has to give you $100,000 and they have to pay all your legal fees. So these cases are nightmares for employers. So if this has happened to you, if you’ve been fired while you’re out on FMLA leave, or soon after you return, you might have a great case. And by the way, when you’re, if you go out on leave, you don’t have to ask for FMLA leave. You don’t have, no one’s required to say that. All you have to do is say, hey look. I’m sick or my mom’s sick. I want some time off. That’s it. You don’t have to even mention the words FMLA. So don’t be worried about that. So anyway, if you want to know a little bit more about who’s protected by the FMLA we have other videos that explain that. But that’s it in a nutshell, those cases are dynamite, and because they’re so strong, most people who are in that situation can settle their cases fast without ever going to court, because most companies don’t want to deal with that. They’d rather pay up early, put it behind them, and hopefully learn a lesson and not fire the next person that goes on FMLA leave. Until next time, I’m Robert Ottinger

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Employment Law Blog

Why Companies Steal Money from their Employees

More money is stolen each year through wage theft than all other crimes combined.   Approximately 135 $Billion.  Low wage workers are hit hardest as they on average lost about one-third of their earnings each year to wage theft.   Hi, I’m Robert Ottinger. I’m an employment lawyer with the Ottinger Firm, and we represent executives and employees. Every year, $15 billion is stolen through wage theft. Wage theft is the single biggest property crime in America. More is stolen through wage theft than other property crimes like robbery and burglary combined. Most of the victims of wage theft are low-income workers, and most low-income workers in America lose about one-third of the earnings every year through wage theft. This is a big problem in America, but it doesn’t get much coverage in the media. But yesterday, a reporter called me and wanted to know why, in my opinion, wage theft was such a big problem. Well, I told her the answer was simple. The system is rigged in favor the employer. Here’s how it’s rigged. Most property crimes like robbery and burglary are crimes. If you steal someone’s ring, if you steal their car, and you get caught, good chance you’re going to go to jail or be punished harshly. However, if a company steals a person’s wages, they’re not going to go to jail. When was the last time you ever heard of a person going to jail for wage theft? It never happens. So that’s the main reason, in my opinion, why wage theft remains such a huge problem because it’s theft. If you steal someone’s wages, it’s just like stealing money out of their pocket. There’s really no difference, but for some reason, it isn’t a crime in America, and that’s why companies continue to do it. The second reason is that the government agency that’s supposed to protect workers from wage theft is called the Department of Labor, but that department is really kind of a joke, and that’s because there aren’t enough people working there to protect the American workforce. In fact, the numbers are kind of startling. Did you know that 70 years ago the Department of Labor had 1,000 people out there trying to enforce the wage laws? And back then, 70 years ago, there were 22 million workers. But today, 70 years later, the workforce has grown to 135 million workers. But guess what? There’s still only 1,000 people working for the Department of Labor trying to protect workers. So that’s really the main reason. The Department of Labor is a joke. It doesn’t have anywhere near the amount of people it needs to help protect the American worker. Hopefully, someday soon, our country will realize this is a big problem and make the changes necessary to help the American workforce. I’m Robert Ottinger. If you have any comments, if you disagree with this, any suggestions, I’d love to hear your comments. Just let me know in the comments below or send me an email. Thank you.

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Employment Law Blog

Fired on FMLA: The Story of Rodney Jones

The Family Medical Leave Act was created to give employees time off to care for themselves or close family members.   Rodney Jones needed time off for surgery but he wound up getting fired.   Technically an employee is free to do what they want on FMLA leave, but posting photographs of yourself on the beach while on leave can create the wrong impression.   Here is Rodney’s story.   What follows is a transcript of the video. It’s really easy to suspect that an employee is abusing family and medical leave if they post pictures of themselves on a tropical vacation on Facebook, but the reality is that people go on leave for different reasons and not everyone has to be home on their recovery couch. The recent 11th Circuit decision in Jones versus Gulf Coast Healthcare provides a thoughtful and thorough review of some of the key provisions of the Family and Medical Leave Act, including a situation involving a vacationing employee. This is Rodney Jones, the plaintiff. He was the activities director for a nursing home called Accentia operated by Gulf Coast Health. He worked there for 15 years before getting fired in January 2015, whose job involved physical work, like picking up patients out of bed, unloading patients from an equipment from vehicles, shopping for supplies, and setting up events around the community. He described himself as a hands-on guy who was physically involved in his work. Jones needed a shoulder surgery in 2014 to repair a torn rotator cuff. Jones took three months of FMLA leave to recover, but at the end of this period he still wasn’t able to perform the physical parts of his job and didn’t have a certification for duty from his doctor. Accentia refused to reinstate him but gave him another 30 days to recover. While on this new extended leave, Jones went to St. Barts, vacation on the beach for a few days, and also visited a local amusement park a few times. While on these trips, Jones took photographs of himself and posted them on Facebook. Some of his Facebook friends were colleagues at work and his images circulated around and made its way to his supervisor. When Jones finally returned to work, he had a fitness for duty certification, he was able to perform the essential functions of his job and he was ready to go, but his employer wasn’t ready for him because they’d seen those pictures of him on Facebook and they thought he was abusing their leave policies and they fired him. Jones sued Accentia under the Family and Medical Leave Act for interference and retaliation. Accentia, though, got the case thrown out on summary judgment. Jones then appealed to the 11th Circuit and they recently issued an opinion that covered both of these claims. Let’s take a look. FMLA interference occurs whenever a company interferes that employee’s rights under the FMLA. Jones claimed that Accentia interfered with his right to return to his position at the end of his FMLA period, but their Court of Appeals didn’t buy that argument because Jones didn’t have the right to return to his job at the end of his FMLA period because he wasn’t capable of performing the essential functions of his job then. He still couldn’t perform the physical part of his job, therefore, he didn’t have the right to return to his job at the end of his FMLA period and Accentia couldn’t have interfered with something that didn’t exist, and therefore, that claim was bounced. Next, the Court addressed Jones’ retaliation claim. FMLA retaliation occurs whenever an employer takes adverse action against an employee for exercising the rights under that law. Here, Jones claims that Accentia fired him for taking FMLA leave. The Court of Appeals focused on the issue of retaliatory intent in this case because Rodney Jones didn’t have any direct evidence that Accentia fired him for taking FMLA leave. In fact, Accentia denied doing that, so there was really no direct evidence at all. But Mr. Jones wasn’t out of luck because in retaliation cases the Court will create a presumption of retaliatory intent whenever something called temporal proximity exists, and that’s just a fancy word for saying that the firing or adverse action occurred close in time to the exercise of his rights under the FMLA. And here, since Mr. Jones was fired right after he returned from FMLA leave, the Court applied that presumption and held that the case did have merit and sent it back to the Trial Court for further proceedings. So, Mr. Jones’ case actually didn’t get dismissed in its entirety and it will continue on another day in the trial court below, and we’ll watch it to see what happens. So, what are the key takeaways from the Jones case? First, there’s no reinstatement for an employee on FMLA leave unless that employee can perform the essential functions of the job at the end of the leave period. Two, an employer can require an employee to obtain a fitness for duty certification from their doctor before they return to work. Temporal proximity can create a presumption of retaliatory intent in an FMLA retaliation case. And finally, even though this wasn’t in the decision itself, employees out there who are on FMLA leave, on vacation, or having good time definitely should not be posting pictures of that on their Facebook pages. That’s the end of this video, I hope you enjoyed it, and thanks for watching.

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Employment Law Blog

10 Severance Pay Negotiation Tips

If you are evaluating a severance agreement, you should consider speaking to one of our severance lawyers.  The video below provides some insight into the key terms in a severance package.  We offer a severance agreement review and strategy session for $750. Self help guide to negotiating your own severance package. No time to watch a video? You can also read the ten tips below: Delay separation date Negotiate payment terms Collect unpaid expenses Ask for more money Extend health benefits Avoid obligations to pay back employer Avoid obligations to seek new employment Ask for no contest to unemployment claims Ask for a job reference Eliminate non-compete clause

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Employment Law Blog

Six Key Points to Consider when Reviewing a Severance Agreement

These tips may help you evaluate your severance package.   Each case is different so mileage may vary.   It’s a great idea to consult with an experienced New York severance lawyer. 1. What is the severance pay schedule? Many companies will propose a payout in 30 or 45 days after execution of the severance agreement. There is no reason to wait that long and companies will often shorten the payout date to 10 or 15 days upon request. Also, companies often propose a payout over time that basically keeps you on the payroll for a period of time. A lump sum payment is preferable because you get all of the money immediately. Pay outs over time can be disrupted if something comes up – avoid these potential issues with an early lump sum payment. 2. Are outplacement services offered? If so, determine if you need those services. Most people do not want them anymore. If you don’t need those services, ask to have the cash equivalent. 3. Are the severance payments subject to a mitigation offset? For example, if you get a new job within a certain time frame, are you required to pay back an amount or have the payments reduced? Obviously you want to avoid any offsets if you find a new job. If an offset clause is included in your agreement, ask to have it removed. Companies usually agree to do this. The point of a severance package is to end the relationship so why create new ties. Here is a clause that our New York severance lawyers use to cover mitigation and offsets: “The Executive is under no obligation to seek other employment and there shall be no offset against any amounts due to him on account of any remuneration or benefits provided by any subsequent employment he may obtain.” 4. Is there any money owed to you that is independent of the severance package? For example, are expense reimbursements owed or a pending bonus? These payments should be recognized in the agreement. If you know that certain expenses are due, run a report and show it to your employer so the amount owing is known and if any questions arise, try to solve them immediately. Also, if an accrued bonus is due, try to get the bonus paid. The bonus is not part of the severance if it has already been earned. Companies often try to exclude bonuses. Also, be sure to include a clause that covers any outstanding business expenses.  Here is a clause that covers un-reimbursed business expenses: “Within 15 days of the Separation Date, the Company shall pay to the Executive any expense reimbursements due to the Executive as of the Separation Date pursuant to the applicable plan, program or practice of the Company.” 5. Benefit Continuation. If the company has offered to continue your health insurance, will this be accomplished by continuing the existing insurance plan or by COBRA reimbursement? This should be set forth clearly in the agreement. If the company has not offered to extend benefits, you should ask them to do so. Ask to have the benefit continuation mirror the severance period (if the severance offer is 4 months ask for 4 months of continuing health insurance). 6. Job Reference. What type of reference will the company provide to you? If they will agree to a letter of reference, have the letter prepared and attach it to the agreement. Or if a letter cannot or will not be prepared, set out the terms of the reference in the agreement as in this sample. “The Company agrees to supply a neutral reference letter that includes the Executive’s title, dates of employment, salary and the reason for separation as resignation.”  However, many companies today are reluctant to provide reference letters or anything more than a neutral job reference. For more on this topic, see the Forbes article on How to Get the Best Severance Deal.

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Employment Law Blog

Business Expense Reimbursement for San Francisco Employees

Many San Francisco employees are required to commute between two or more work sites during the day.  This obligation raises several important issues that San Francisco employees should be aware of.  First, San Francisco employees are entitled to be reimbursed for all work related out-of-pocket expenses, such as travel related expenses, cell phone charges, meal and entertainment expenses, and tools.  These business expenses must be reimbursed if they are paid by the employee and are incurred in order to perform the employee’s job duties. Second, San Francisco employees are entitled to be paid for the time they spend commuting between work sites. If you are being forced to pay for business expenses and are not getting reimbursed, you may have a claim. Contact the San Francisco employment lawyers at the Ottinger Firm to learn more about your rights to business expense reimbursement. Some Examples: Business Expense Reimbursement For Home Health Care Workers A home health care worker begins her day at patient A’s house in Oakland.  The home health care worker then drives to patient B’s house which is half an hour away in San Francisco. The home health care worker is entitled to be reimbursed for both the travel expenses incurred and for the time it takes to travel between work sites.  This means, the home health care worker should be reimbursed for the expenses incurred in driving from A to B, including mileage and tolls, and is also entitled to be paid for the half hour it takes to make the drive to San Francisco. Many employers fail to pay travel expenses or for travel time. However, if you are required by your employer to travel between various work sites as part of your job duties, then you should be paid for that time.  Contact the Ottinger Firm to learn more about your right to expense reimbursement and travel time pay. Business Expense Reimbursement for Outside Sales Associates An outside sales associate for a radio station is required to use her own car to drive to various client meetings throughout the day.  The sales associate is also required to use her personal cell phone to make work calls and send work related emails and texts. The outside sales associate, is entitled to reimbursement of expenses incurred in driving to her various clients.  She is also entitled to reimbursement for cell phone related expenses.  A recent California Court of Appeal decision found that employers must reimburse employees for work-related phone calls made on personal cell phones or face liability. The outside sales associate may also be entitled to reimbursement of meal and other entertainment expenses incurred as part of the sales process. … San Francisco employees are not  required pay for work related expenses.  If you are being forced to pay for work related expenses, then contact the Ottinger Firm to learn about your rights to business expense reimbursement.

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Employment Law Blog

New York Severance Agreements

As a general rule, employment relationships in New York are at-will. Typically, that means you can be terminated for any reason (or even no reason), so long as your employer is not basing the decision on a discriminatory or retaliatory motive. Despite this general rule, many companies offer terminated executives New York  severance agreements to ease the transition for both parties. These payments are almost universally accompanied by extensive written agreements setting forth certain obligations and waiving certain rights. It is essential that executives understand what these agreements entail and how they can be improved.  If you need assistance with your agreement, contact our New York severance lawyers. Understanding New York Severance Agreements As stated above, employees generally have no legal entitlement to New York severance agreements. However, although there are no general legal rules, there are circumstances under which employers may be required to pay severance. In the first place, if you have signed an employment agreement—either at the outset of or at some stage during your employment—it may set an entitlement to severance.  In some cases, this payment is clearly defined, in others, the entitlement can is contingent on certain factors such as the length of employment or the circumstances surrounding the termination.  It is important to consult a lawyer to determine exactly what your employment agreement may entitle you to upon termination. Even if you don’t have an employment agreement, you may be entitled to a New York severance agreement to the extent your employer maintains clear policies of making payments on termination. Under many circumstances, such policies create a quasi or implied contractual right to New York severance agreements. Typically, under either an employment agreement or under an employer policy, an employee is only entitled to severance if they have been terminated. In other words, severance is rarely paid out after a resignation. Moreover, employers often do not have to pay severance, even if there is an agreement or policy, if an employee has been terminated for cause. The term cause is not precisely defined, but usually includes criminal convictions, gross negligence, or damaging the reputation of the Company. Again, legal advice is often essential in deciding whether an employer’s “cause” determination is accurate. How to Improve New York Severance Agreements? Once an employer has made an offer of severance, the natural question is whether it can be improved. There are several different strategies an executive should consider in approaching such a negotiation, either on behalf of herself or through an attorney. This will be a highly fact-specific judgment based on, among other factors, the circumstances of termination, the length of tenure, and potential legal claims. The most straightforward way to improve a New York severance agreement is to threaten potential litigation. Almost without exception, a severance agreement will include a waiver of the executive’s right to sue. Therefore, to the extent an executive has a viable legal claim against the employer, it is possible to argue that the amount of severance is not enough to compensate for the loss of that claim. However, because employment relationships are generally at-will, under many—if not most—circumstances, a terminated employee will not have a potential legal claim to bring. Threatening a former employer with frivolous litigation is a tactic that is very likely to backfire, as the threat is not only likely to be seen as aggressive, but also empty. Under such circumstances, it is generally better to consider a more conciliatory approach. The request for an increase in severance can instead be requested based on the length of service, the value the employee added to the organization, and the difficulties that may be associated with making a transition. Such arguments may not always work, but absent a compelling legal claim, they are more likely to be successful than threats. Finally, an executive should consider whether either the New York severance agreement or earlier employment agreements have restrictive covenants, such as covenants not to compete or not to solicit employees or clients. These clauses may be unenforceable if an executive has been terminated without cause, unless the employer offers some severance payment as consideration. To the extent the employer values these covenants, it may be a potential basis to increase the offer. How Else Can New York Severance Agreements Be Improved? There are many ways New York severance agreements can be improved beyond the bottom-line dollar value of the package. Each agreement is different, and it is therefore important to consult an employment attorney to get specific advice. Such potential areas for improvement include neutral employment references, agreements not to contest unemployment benefits, acceleration of unvested stock options, and outplacement services. Including such provisions may make the decision to accept a severance agreement easier even if the amount is not increased. If you have a question about New York severance agreements, contact us to arrange a consultation.

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