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Return Overpayment of Severance? It Depends

April 01, 2002

Question: After I was laid off, the company sent my last paycheck and a severance check.

I cashed the checks, paid some bills and bought some extra Christmas presents because of the severance check. Now the company says there was a mistake and is asking me to return some money.

I feel very bad that I spent that money, but I thought it was mine. Do I have any option?

--G.S., Los Angeles

Answer: If you received more severance pay than you were clearly entitled to receive under the terms of a severance agreement or company severance policy, a court probably would require you to return the extra money.

On the other hand, if the severance payment was purely discretionary on the part of your employer and not such a large amount that a reasonable person would conclude that there was an obvious mistake, you would have a good argument for keeping the extra money.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor,

UC Irvine

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City Isn't Exempt From Overtime Laws

Q: I worked part time for a city government from 1979 to 2000. I usually was assigned to special events, which meant working long hours and some holidays.

A reliable source told me at the time that the city was exempt from paying extra for overtime and holidays. Is this true? If not, can I still collect? How?

--P.C., Fontana

A: I'm not aware of a city government exemption from overtime laws.

There are some exceptions to the overtime rules for certain industries. For example, overtime rules might be different if you worked at a hospital owned by a city.

It's also possible that the city, rather than considering itself exempt from overtime rules, may simply view your particular job as exempt because of the duties you perform.

If you are considered a manager, for example, you might be exempt. If you are not exempt, you would be entitled to overtime if you worked more than eight hours a day or 40 hours a week.

Employers are not required by law to give you holiday pay, however. Indeed, many employers exclude part-time workers from holiday pay.

Employers can decide to give holiday pay to some employees while denying it to others, as long as it is not on a discriminatory basis.

If you think you have a claim for overtime or holiday pay, you can contact the California Labor Commissioner's Division of Labor Standards Enforcement. It will investigate your claim free and put pressure on the employer to pay any obligations. You also have the option of contacting an attorney.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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Sick Leave Can Be Used to Care for Family

Q: I recently discovered a California law stating that employers must allow parents to use their own sick leave to care for a sick child.

My employer, a large company, is saying that this California code does not apply because we don't have "accrued sick leave." Instead, each employee is given a set number of days during a set time period to be used for both short-term and long-term illnesses.

My previous managers always allowed employees to use sick leave while a child is ill, yet my current manager is insisting those managers were wrong.

--J.F., Garden Grove

A: California Labor Code Section 233 stipulates that any employer providing sick leave to employees must permit them to use it to attend to the illness of a child, parent, spouse or domestic partner.

An employee would be entitled to use the number of sick days that would accrue during six months of employment.

Sick leave is defined as an absence for any of the following reasons:

* The employee is physically or mentally unable to perform his or her duties due to illness, injury or a medical condition.

* The absence is to obtain professional diagnosis or treatment for the employee's medical condition.

* The absence is for other medical reasons, such as pregnancy or obtaining a physical examination.

The type of leave you described should fall within this definition, and you should be permitted to use your accrued time to care for your child.

If not, I suggest you contact the head of human resources at your company and cite the appropriate section of the code. If your employer continues to deny you the time off, you may file a claim with the labor commissioner's office.

If you are successful, your employer will be required to provide you with the paid time off.

You have another option--filing a civil lawsuit in Superior Court to recover any wages that you lost from taking time off without pay or from termination for attempting to use your time off to be with your child. The court also has the authority to award reasonable attorneys' fees.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent Shop Talk columns are available at www.latimes.com/shoptalk.

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