When an employment relationship ends, do you know how to protect yourself so you preserve your rights? Knowing what to watch out for may help you weather the transition of being in between jobs. The following provides some helpful guidelines:
First: Make sure that the employment relationship has ended and there is no misunderstanding about this. Employment can end by resignation or lay-offs. An employee can also be “discharged.” “Discharge” includes involuntary termination. It also includes release of an employee upon completing a specific job assignment or when the time duration for which the employee was hired is ended.
Second: Consider any payment that might be due to you upon termination. Your employer may owe you unpaid wages for the days you have worked prior to your discharge. Has your employer paid you for all work performed beyond 8 hours per day or 40 hours per week? Have you been paid for work done during missed lunch or rest breaks? If you were eligible for vacation, you may also be owed payment for unused vacation time. (Note: “Use it or lose it” vacation pay policies are illegal.)
Third: If any payment is due, your employer must immediately pay all compensation due to you. The employer should pay you “at the place of discharge.” If you quit (this means you were not discharged), you should be paid at the office or agency of the employer in the county where you worked.
If you are owed money, the employer has the obligation to make sure that you receive your payment. If the employer tells you that they will mail the check, you must consent to such an arrangement. If the employer sent the final paycheck by mail without your consent, and the check was not received, it is considered that no payment has been made. You may also authorize the employer to pay the wages into your bank account.
If you resigned from work, the employer must pay all compensation due to you within 72 hours of the resignation. If you gave more than 72 hours' notice of resignation, then all compensation due to you must be paid on the last day of your work.
If an employer willfully fails to pay all wages due to an employee after the termination, the employee's wages continue as a penalty until paid, for up to 30 calendar days. This is called “waiting time penalties.” Hence, if the employee is regularly paid $120 per day, the employer may be held liable to pay up to $3,600 in penalty for not paying the terminated employee on time.
Severance Pay – California law does not require that an employer provide severance pay to an employee. But where an employment agreement provides for unconditional severance pay, such payments are arguably “wages” and hence must be paid immediately on discharge or within 72 hours after resignation.
Finally, consider the circumstances of the termination. Even though employment relationships are generally at-will, an employer may not fire an employee for a discriminatory or retaliatory reason. Discrimination based on age, race, sex, color, religion, national origin, disability, medical condition, pregnancy, and even union affiliation are illegal. It is also illegal to fire an employee in retaliation for the employee's exercise of a right or refusal to violate the law.
If an employee thinks that his or her rights have been violated prior to or during a termination, it would be smart for that employee to consult with a knowledgeable and experienced employment attorney to protect his or her rights.