Two weeks ago, my wife was told her position was being eliminated. She was free to leave immediately, but would be paid through April 18th. In addition, she would get six weeks of severance pay.
On April 18th she went to her exit interview and received her final paycheck, which included the severance pay. After leaving the exit interview she went home. That sam afternoon, the HR representative that conducted her exit interview called and offered my wife another position with the company. The kicker is her hours would change from a standard Monday through Friday 8:00-4:30 job to a variable four weekdays 11:00-7:30 and Saturday 8:00-5:00. Her pay would remain the same.
My wife said she’d have to think about it a bit. The HR rep said that was fine, but she needed to decide by Monday (today). Because of the change in hours my wife and I would no longer be able to car pool and she would end up putting a lot of extra miles on her leased car. Not only that, my wife doesn’t really want to work those hours. So today she called the HR person back and said she couldn’t take the position unless there was at least some increase in pay to cover the extra mileage and inconvenient hours. HR said there couldn’t be any pay increase, and my wife replied she wouldn’t be able to take the position then.
At that point the HR rep became very terse and informed my wife she would have to return the severance pay because she turned down a position of “like status and pay”.
Is this legal? What are our options? Does it matter that they didn’t require a decision before the end of the 18th?
The HR folk didn’t inform her at the outset of this policy? Is the policy published? If no to either or both queries, I smell a good lawsuit in the making.
Seems to me that they fired her, and then offered to re-hire her, as opposed to offering her a different job in lieu of firing. If they had offered her the new job at the exit interview, different story. Thus in my mind she should be able to keep the severance pay.
Though IANAL and this opinion is based upon absolutely no legal knowledge, just my opinion.
I would certainly hang on to the money until I found out for sure what is appropriate. IMNA attorney, but I don’t think the position offered is not comparable to the one she had.
You only sensible option is to talk to a local attorney before returning the check, or before telling the company that she refuses to return it.
I am not an attorney, local or otherwise.
Here are a few options to think about in the meantime. Your wife should insist that the company explain in writing why she is not entitled to her severance pay, with reference to all relevant written company HR policies. This will give you a few days to think about things. I would suggest not cashing the check.
Look at your HR employee handbook. Some companies do a lot of layoffs and rehires, some don’t. The more frequently they lay people off, the more likely it is that they have written policies laying out their rules. So look for rules that apply to her situation. The odds are, when she was hired, she signed some kind of document agrreeing that she’s been informed of and agrees to obey the company’s employment practices. And who knows, you might find nothing that even comes close to describing the official policy for someone in her situation, or just the opposite - that they do this kind of thing often enough that they have an SOP written for it.
With some basic information like this in hand, then sit down with the lawyer.
DO NOT RETURN THE SEVERENCE PAY
The operative word here is “severence”. As in to sever the employment relationship. They eliminated the position. They terminated her employment. They paid your wife the severence. Now they essentially want their money back because they feel slighted because your wife isn’t jumping at the chance to rejoin the company that just fired her a few hours before.
The money is now your wife’s. Your option is to simply hold onto it and tell the company to go fuck itself. If they call you, simply have your lawyer send them a letter threatening to sue for harassment. Under no circumstance return the money to them.
Right now you’re at an advantage because the check is in your hands. If they cancel it, they’re at an advantage.
Work out whatever you can (different position? leave and keep the severance? leave and keep a portion of the severance?) but cash the check while you can. Tell them you already deposited it if they ask.
To your question: if they handed your wife a check, it’s highly likely that she signed something in return. And it’s highly likely that what she signed said something like “I accept this check as severance from the company, and here are some things I promise to do (like not steal from them, etc.)” The contents of that letter are key. Hopefully, your wife has a copy. Read it carefully. Take it to a lawyer if necessary.
By the way, if your wife is actually interested in staying at the new job (potentially at a higher salary), don’t be nasty. Negotiate calmly. There are still possibilities open, including them changing the hours of the new position. Be firm about keeping the money for the moment, but make it clear that this is because that’s what the company agreed to. Make it clear that she wished she could’ve stayed, but couldn’t by the companies choice, and she hopes she can come back in some more reasonable position. Don’t put yourself in a fighting position over this unless and until you decide she’s gone forever.
At least in IL severence pay is 100% at the employers discretion. They didn’t have to give her anything.
Now the hours are substantially different and that in itself would entitle her to unemployment.
The key here is was she really terminated. Did she fall off Insurance? Did she lose seniority?
I would recommend cashing the check ASAP. If you had direct deposit CLEAR THAT ACCOUNT OUR NOW. Leave no money in it. Better yet close it and reopen it.
Do not spend the money. Just in case it turns out they DO have a legal right to it you don’t want to have spent it.
Finally ask yourself, how is this going to effect her reference for the next job. Most places now will only give your hire, ending dates and verify salary. They will also tell you if she is eligiable for rehire. That is key. If the employer thinks your bad they will say no.
I agree that you should ask the company to back up its position. It’s hard to imagine what basis they have for demanding return of severance pay – it appears that the employment relationship was severed - what difference should post-discharge negotiations make?
But ya never know - you need to study what was signed, etc.
The main reason I am posting is to warn you about something: Your wife was offered a job and refused it. This may have implications for her unemployment insurance benefits. Study the book carefully!!!
Something I learned a long time ago at a management training seminar: You and the company are both screwed if you didn’t follow the severance/retraining/reassignment procedures which your company has published. Doing that stuff off the cuff is, essentially, giving a blank check to the employee you’re screwing over.
I am being laid off soon, so there is a lot of talk about this around.
One thing that floored me if that in my job, as long as another position is the same number of hours and same pay, it is a comparable position… even if they offer me the night shift…
So unfortunatly the position she was being offered might be just that even if it sucks for the employee, legaly it might be a position of “like status and pay”. In my situation, after the lay off if we are offered a job that is comparable and we do NOT take it… We don’t get our severance pay…
Althought, the problem here is that they already gave it to her… and they didn’t tell her before that they might come up with something else for her, so that is fishy…
Tell HR that they already allowed her the severance, and that you were never told of other opportunites in the future and that you were not warned. That’s the only leverage you have.
Keep the money. Make them come after you - let them pay for the lawyers first. My guess is they’ll realize they’re legally in the wrong (since termination occurred) and nothing will come of it.
Cash the check. Shut off access to your account by that company. Hang onto the money.
The company may send you some official-looking letters trying to get you to send the money back. Save the letters, but do not send the money back until after they sue you and win.
My impression is that this is like the doctor’s office sending you bills for which someone else is responsible, hoping you will send them money. They are trying a bluff. Once it becomes clear that they will have to spend money on lawyers to get their money back, they will drop it.
IANAL, but I have had similar situations. There is no need either to get angry or to be intimidated. You have to do what a judge says. You don’t have to do what a company wants, if you don’t work for them anymore.
I agree with Boyo Jim, in that your wife should make them explain in writing their basis for asking for the money back.
I agree with apparently everyone here that you should cash the check. AFAICT, your wife has not been officially (i.e., in writing) informed she will have to return the money. Until that happens, proceed like they haven’t asked for the money back yet (well, don’t spend it yet).
And when you do, make sure to ask if they have experience representing employees. A lot of lawyers practicing employment law are doing it from the employer’s point of view.
The check has been cashed and moved into a savings account.
My wife did have direct deposit set up, but when she talked to the bank they said it’s not in their hands. I guess this makes some sort of sense, since you never have to tell the bank to grant permission for direct deposit. Since her employment has been terminated I would expect there would be legal repercussions if the employer tried to exploit the direct deposit relationship. I imagine that relationship is terminated with the employment.
There has been no further word from the former employer. When my wife was told she’d need to return the severance she asked to speak with the manager of HR. The manager was unavailable at the time and was supposedly going to call back. Given that has not happened yet, we’re in a holding pattern. I think I’m just going to follow much of the advice given here and wait for them to make the next move, at which point we’ll request everything in writing and so on. I think there’s a fair chance we’ll never hear from them again. Which is fine by me!
Actually, you did tell the bank to grant it way back when. Your wife signed something for work that granted them the right to access her account. They sent a copy to the bank.
It is important that you tell the bank in writing that this company is no longer allowed to access your account, and time is important. Trust me, I’ve been through this exact same scenario (on both sides, actually) The teller may have told you that it’s out of their hands, but they are mistaken. Talk to their boss. At my bank, the appropriate form is called a “Request to block ACH Activity” form. I don’t recall what “ACH” stands for, but it basically means auto-deposit/withdrawal.