Help this laid off techie get one extra week of severance pay!
July 10, 2014 12:09 PM   Subscribe

I was just laid off as part of a "workforce reduction" at my company. I am leaving on very good terms, no ill will whatsoever towards the management or the company. EXCEPT: they just forced everyone to take a week off, and then fired a bunch of us the very next week.

I am getting the standard two-weeks severance but I would also like to get the "stolen" week back. I would not have taken this week voluntarily - I tried to get out of it, but our management was firm that everyone has to take the week off, no exceptions.

This shutdown week was officially justified as: the company did not meet financial goals, half the manufacturing people were taking time off anyway so the remaining half was left with nothing to do, might as well shut down and save money. Except, us software people have nothing to do with manufacturing schedules - and, it's hardly fair to make former employees essentially give their earned PTO dollars to the company they are no longer working for. Oh, and the speech that we got before the shutdown at a company-wide stand-up meeting was that it was an alternative to layoffs. Basically, "we had to choose between pay cuts, layoffs and a shutdown, and we chose shutdown as the least painful alternative".

I did talk to an HR person about this and she said "we don't do extra severance bla-bla-bla generic corporate speak bla-bla-bla". (I said I needed to think about that and ended the conversation).

Is there anything I can do? Any legal ideas or specific talking points? I do not think it's worth it for me to lawyer up on this as one week's pay is probably the same or less than the legal costs, and from what I could find on the internets, it is not actually illegal for a company to force employees to take PTO.

A few maybe-relevant points: I am in Minnesota, and I am holding off on signing the severance agreement while trying to resolve this issue. The company did the same thing with our Christmas week but I am willing to forget it.
posted by rada to Work & Money (21 answers total)
Do you think the bunch of you who got fired could pool your resources and get a lawyer? Damages etc. might make it worth it.

At the very least, you should be able to talk to an actual lawyer and get a better idea of what the costs vs. benefits would be.
posted by Etrigan at 12:16 PM on July 10, 2014 [2 favorites]

Were it me, I would probably concentrate what energy I had in finding a new job. I don't believe Minnesota guarantees any severance pay, but IANAL.
posted by selfnoise at 12:20 PM on July 10, 2014 [6 favorites]

I'm confused here. Are they doing PTO payouts for what you didn't use? From what I've been able to find on the internet, employers aren't required to pay out PTO in your state. (IANAL)

If it's the case that they're not doing post-termination PTO payouts, and if I'm not reading this completely wrong, they did you a favor by making you take that week that they wouldn't have otherwise paid you for.

If they are doing PTO payouts, then what's the difference? Assume for a moment that you were let go before the PTO. You'd still be home and you'd still get paid for a week. The only difference is when they told you that you were s-canned.
posted by inturnaround at 12:32 PM on July 10, 2014 [1 favorite]

Is there a department of labor office you can talk to? This strikes me as a sleazy way to get out of paying unemployment for that week; if it had been unpaid furlough you could have filed for that week. If they had laid you off a week earlier you could have filed sooner. Given those together it seems like a pretty clear effort to end-run the law.

Beyond an actually useful local labor department I can't think of much effective you can do.
posted by phearlez at 12:35 PM on July 10, 2014 [3 favorites]

Unless you're paid $25,000 a week, it's a lousy break, but probably not worth worrying about. Spend your energy on the next job instead.
posted by colin_l at 12:40 PM on July 10, 2014 [1 favorite]

This is assholey, but i have to question how much of it is a total fallacious sunk costs thing. You're talking about a week of pay here. How much time is it worth investing to get it? How much money?

I think hiring a lawyer would be right out unless you could get a bunch of people together, and even then you'd still have to dedicate time to actually dealing with that.

I've been bullshit laid off at least twice in shady ways, and arguably probably more. I regret the one time i tried to fight it and move to a different location at the same company rather than walking, and knowing what i know now i'd definitely not bother fighting this.

If looking for a job and doing interviews can be like the really tiresome awkward first stage of dating and going on dates, then this is like a scummy assholey breakup. Walking away and going no contact is often more productive.

Take whatever time, effort, and energy you were going to spend on this and just spend it on getting a job somewhere else.

If there was a promised in writing severance package they were reneging on, or they hadn't actually paid out your last two checks or something i'd say go for it and fight it. But this is a pretty questionable time Vs reward thing.
posted by emptythought at 12:40 PM on July 10, 2014 [2 favorites]

Yeah, I would just let this go. I get that you're annoyed, and it was totally worth you taking one crack at getting the money through HR . But it's not a lot of money, and it's unlikely they have any legal obligation to give it to you. (IANAL but a company big and mature enough to have an HR department is unlikely to have deliberately implemented a practice affecting the pay of numerous staff, and then standing their ground on it, without having made sure beforehand it was legal.)

Move on, get a new job at a company that's more stable and successful :)
posted by Susan PG at 12:58 PM on July 10, 2014

Response by poster: Yes, they are doing PTO payouts, per company policy. This was essentially the reasoning for the shutdown week: PTO is earned every week and is on the books as payables; making everyone take the time off effectively removes these payables from the books, thereby helping the company meet financial goals/wall street expectations for the quarter (or something to that effect).

One week's pay is a couple grand. Not enough for a lawyer but enough for me to want to spend some energy on, especially since my skill set is in high demand so the only energy I need to conserve for the job search is fighting off all the recruiters. (I apologize to anyone who has a hard time finding employment but this is just the case in my industry).
posted by rada at 1:02 PM on July 10, 2014

If the company shut down, they have a case. I'm not a lawyer, and I don't know if its a good case, but its not nothing. How much lawyering can you buy with the week's pay you will get if you win? A couple hours?

The only way you could develops an upside with low enough downside risk is if there is some sort of appeal process.
posted by SemiSalt at 1:03 PM on July 10, 2014

I'm confused. Am I correct in thinking that you took this week off of work, and got paid for it, so it was a week of paid vacation? Just at a time that was not of your choosing? If that's so, then I don't think you've got a case here.
posted by bq at 1:05 PM on July 10, 2014

Any energy you spend on this matter pursuing delays finding a new job. The chances of you getting anything more from your employer when your employer did nothing illegal, when your employer is insolvent, and when you are not willing to get a lawyer (which is the right choice) is precisely zero. As such, any effort you put into it has no value and a tangible cost (not getting paid due to not having a job). Further, it has a (very) small risk of affecting the good will you have with your employer.

Consider this question to be your complaint to your world that your previous employer was not a great one. They weren't - as evidenced by the layoffs.

Now, give it up and go find a new job.
posted by saeculorum at 1:21 PM on July 10, 2014

I also don't totally understand what happened here. If they made you take your PTO, then they paid you for it, right? Is there a difference between being forced to take a paid week off and then fired, vs being fired a week earlier and getting paid out for that week of PTO? In both cases you have the same amount of money and the same final work date.
posted by Jairus at 1:29 PM on July 10, 2014

Response by poster: @bq, yes that is correct. I can only presume that you are not in the US? Because here, vacation is traditionally taken when the employee wishes to take it. In my 15+ years in the workforce, I have never heard of employees being forced to take vacation, at least outside of use-it-or-lose-it end-of-year situation. You have to get your manager's approval, of course, and you may not be able to take the exact week that you want, but you are typically able to come to a reasonable compromise.

Specifically to this job, I negotiated 3 weeks (up from the initial offer of 2 weeks) with this company and my employment offer states 3 weeks. It did not occur to me to specify that "vacation" means I decide when to take it, because of how the employment market traditionally functions, as I mentioned above. I would categorically not have accepted this job offer without "real" vacation time (and I am not saying this because I am pissed off but because it is the truth).
posted by rada at 1:30 PM on July 10, 2014

It might also be wise to post a review to
posted by toastchee at 2:03 PM on July 10, 2014

Response by poster: @bq - your first link is news precisely because it is out of the ordinary. If anything, I should think it helps my case.

Your second link is very interesting! Even though you provided it as proof that I should give up, it actually gives me excellent reasons not to:

Contrary to what many employees believe, vacation or PTO is not an entitlement. It is a matter of agreement between the employer and the employee. So, the accrual and terms of use can generally be subject to whatever reasonable restrictions and requirements the employer’s policy provides. The key to validity here is the reasonableness of the restrictions.

Reasonable restrictions can be things like:

- Only full-time employees are eligible for vacation
- No one is eligible to accrue vacation until completing 90 days of employment
- Vacation can be taken in minimum increments of, say, 4 hours or 1 day

Unreasonable restrictions can be:

- Requiring employees to use up all vacation in the year it is earned, or very shortly thereafter (sometimes called an “accelerated accrual” policy). The Department of Labor Standards Enforcement deems this to be unfair.
- Employers must give sufficient notice to the employees of their reasonable restrictions. Any restrictions on the use of vacation/PTO should be clearly stated in the policy, which should be given to the employees before work begins and vacation/PTO accruals commence.

This example is especially helpful in my situation:

Scenario 4: Frank’s supervisor is eager to show Frank the door. Forcing an employee to use up vacation rather than serve out the term of employment, especially in the absence of any vacation-plan language anticipating such a contingency, runs the risk of being called a forfeiture of the vacation wages that would have been Frank’s had he been permitted to serve out his employment, for unused and accrued vacation/PTO must be paid out upon termination.

(Bolding is mine).

Googling for "forfeiture of the vacation wages" term used in the article yields very interesting results. Apparently, per case law, earned vacation payouts cannot be forfeited in Minnesota (link).

I think you inadvertently helped me get my week! Thank you :)
posted by rada at 2:04 PM on July 10, 2014 [4 favorites]

Priority #1 for you should be to find a new job, ASAP.

THEN go after your soon-to-be-former employer. I don't think it's legal to force an employee to take PTO at a specific time. It seems like the lost pay wouldn't be enough to pay for an attorney, so you may just have to suck it up.
posted by tckma at 2:33 PM on July 10, 2014

One week's pay is a couple grand. Not enough for a lawyer but enough for me to want to spend some energy on, especially since my skill set is in high demand so the only energy I need to conserve for the job search is fighting off all the recruiters. (I apologize to anyone who has a hard time finding employment but this is just the case in my industry).

If that's the case, just get a new job and write this off as something happening like say, your car got damaged to the tune of that amount in a hit and run, and you didn't have comprehensive/uninsured motorist protection so you just have to eat it.

I know i've already stated my opinion, but i was writing that from the prospective of actually having to go shovel and sweat a bit to get a new job. If you can just walk right into one(and i know people like that, including someone who has been fucked over like this several times) then just walk.

It's better to look at this like the water heater blowing and damaging some of your stuff than something to arm wrestle. If you can get a new job tomorrow and keep making money, just do that. If after you have a new job you have some free time you could otherwise be spending doing whatever you want, and you still want to drill them over this couple grand, then go for it. That's definitely enough money to possibly be worth that.

I'd much rather just get a job now and figure out collecting that later, if at all, though. Separated from the situation, and not angry about something unfair happening, it just seems silly to want to deal with this before you get a new job.
posted by emptythought at 2:55 PM on July 10, 2014


I know of multiple Minnesota companies that do annual (christmas time) shutdowns and require employees to burn vacation to account for the non-holidays.

Whether you'll get any traction with the "they didn't give enough notice" thing is anybody's guess, but given that the quotes that you bolded are all about "shoulds" and "reasonable" and other fuzzy standards, I would imagine that this would be a tough case to win.

What does your employee handbook say about vacation time?
posted by sparklemotion at 3:18 PM on July 10, 2014 [1 favorite]

When a company is announcing shut-downs as a way to make ends meet, that's a sign to get out of dodge. You live, you learn, it's not a huge deal that you didn't take it as the red flag it clearly is.

You would have been paid out that week if you had been canned one week prior.

They basically only deprived you of one week of a job search, not anything financial.

Since you won't have a problem getting another job, the harm is really pretty negligible.
posted by politikitty at 3:34 PM on July 10, 2014

Hopefully the inspiration provided above will allow you to kick this company in their miserable arse. and get your week's pay.

Damn, I hate shifty employers.
posted by BlueHorse at 7:28 PM on July 10, 2014

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