WARN Act Monies Clarification

I apologize for the lack of posts but I am getting settled into my new job and much of my posting and research comes either late at night or in the early morning!

I want to clarify what seems to be a misperception among ex-Hellerites as to whether or not you are entitled to WARN Act monies if you were able to secure employment before November 28, 2008.

You are still entitled to WARN Act monies even if you left the firm before November 28, 2008 and secured employment at another firm.  However, this only applies if you were terminated by Heller Ehrman.  If you resigned on your own prior to November 28, 2008 then you would not be entitled to the WARN Act monies.

In my example, although Heller stated in its September 26, 2008 e-mail that I was expected to work through to the dissolution date of November 28, 2008, I was terminated – along with many others – on October 10, 2008.  The Proof of Claim Calculation Worksheet (Excel) determines that I am owed 35 days in WARN Act monies.  This would apply even if I had secured employment after my termination date.

* * *

I will also be updating the Proof of Claim Calculation Worksheet later today to allow for calculation of 401k Profit Sharing, prejudgment interest and more.  Stay tuned.

Any Sample WARN Act Letters or Wage Claim Letters?

Your cruise director has received several requests from ex-Hellerites on how to compose a demand letter to the Dissolution Committee, how to compose a WARN Act letter or a Wage Claim letter. Let’s face it, while yours truly is no Faulkner when it comes to the written word, even I get writer’s block from time to time and find it hard to compose letters.

If you could post your samples (with your personal contact info redacted out) in the comments or send to me, hellerdrone@gmail.com, and we’ll get some good info out there for people to use.

I’ll start off with a sample of a letter sent to the Dissolution Committee:

November 10, 2008

Mr. Peter Benvenutti
Heller Ehrman Dissolution Committee
c/o Jones Day
555 California Street, 26th Floor
San Francisco, CA 94104

Heller Ehrman Dissolution Committee
Heller Ehrman LLP
333 Bush Street
San Francisco, CA 94104

Dear Peter and members of the Dissolution Committee:

This letter constitutes a formal demand for payment of wages and other monies due me as part of my employment at Heller Ehrman LLP since April 14, 1912 (substitute your own start date) as Bad Ass Litigation Secretary/Diva (substitute your own title). The calculations are as follows:

• Accrued Vacation: ______ hours at _____ per hour = $_________

• Waiting Period Penalties (for non-payment of accrued vacation): $_____ per day at 30 days (October 11 – November 10, 2008) = $_________

• WARN Notice severance as agreed to in written notice on September 26, 2008: October 11, 2008 – November 28, 2008 = $________

The wages and penalties due are $_________. Please indicate to me in writing when I may expect payment for these wages. Please send all correspondence to:

_____________________
_____________________
_____________________

Sincerely,
Frieda Fondle

Class Action Lawsuit – Update

I know things have been kind of quiet here especially for those of us who were terminated via e-mail on Friday, October 10th.  I did want to give an update on the class action lawsuit issue since your cruise director does receive many emails each day concerning this.

I was waiting to post so that I could hear from enough readers and former passengers of the S.S. Heller Ehrman to see if people are filing wage claims, etc.  Also, as most of us expect to hear about another round of terminations coming this Friday, October 17th, I wanted to see exactly how soon to proceed.

We have different scenarios to pursue and I say this only because a recent article discussed a class action lawsuit letter sent to several Hellerites from the firm of Nicholas Kaster LLP, Attorneys At Law (see http://legalpad.typepad.com/my_weblog/2008/10/heller-staffers.html).  I do not know if anyone has contacted the Kaster firm or not.

Please use the poll below to express your opinion and please make a comment as well.  I am trying my best to not to help steer the group in the best direction, but I also like hearing all sides of an argument.  I realise that if we do file, not everyone will participate.   

Over and out.

Heller Drone
Cruise Director 

Poll: File suit now or wait?

	
File now
	
Wait two weeks
	
Wait for bankruptcy
	
Do not file at all

Score:


Create a poll? Clickhere

One Passenger’s Experience Filing A Wage Claim

This just in.  A recommendation from another loyal reader:

You should not file in SF if you worked in another California office. Claims must be filed at the office that handles claims for the city where the work was actually performed.

For Silicon Valley:
DLSE – Wage Claims, 100 Paseo de San Antonio, Suite 120, SJ CA 95113.

For LA:
DLSE – Wage Claims, 320 West Fourth St., Suite 450, LA CA 90013.

For San Diego:
DLSE – Wage Claims, 7575 Metropolitan Drive, Suite 210, SD CA 92108.

* * *

I just want to relate to the readers what one person in California has experienced when filing a wage claim:

“I went to the Department of Labor Office in San Francisco to file a wage claim yesterday.  My experience was on par to going to the DMV (no surprise there).  At the DMV, you can’t get registration and handle your license in the same window.  The same runs true for the labor office.  I attempted to file a wage claim INCLUDING my WARN act money.  This is not accepted and basically I turned in a mangled form.  Hopefully this spares others the same troubling experience.

The wage claim should only include unpaid hours worked AND unpaid accrued vacation time.  This claim needs to be filed in person or mailed into California Division of Labor Standards Enforcement, 455 Golden Gate Ave, 10th floor, San Francisco, CA.

A claim for WARN act violations should come in the form of a statement/letter addressed to the same place Attn: Ethera Clemons, Deputy Commissioner.”

So the key points:

- when filing a wage claim in California, ONLY INCLUDING WAGES NOT PAID AND ACCRUED VACATION NOT PAID.  DO NOT ADD THE WARN ACT MONIES THAT ARE DUE.

- wage claims can be filed in person at the California Division of Labor Standards Enforcement, 455 Golden Gate Ave, 10th floor, San Francisco, CA or by mail.

- FOR WARN ACT CLAIMS, send a letter to Ethera Clemons, Deputy Commissioner at the same address above.  If anyone drafts or sends a letter, please consider sending me a copy so I can post the text here for others to copy and paste into a letter.

Thanks to our loyal reader for sending in this info – you rock!

And if you have any experiences filing for wage claims and/or unemployment and you want to have your story told here, please email it to hellerdrone@gmail.com.

Over and out.

Heller Drone
Cruise Director

Demanding Scheduled Vacation Time – Is It Legal?

I did not want an excellent comment by Jayne Loughrey concerning accrued vacation to be buried in the comments section of an earlier post, so I’ve placed it here (see below).

We expect more details as to benefits – and how Heller management intends to administer them – to be included in the next communication, perhaps on Monday.  Check back here at Heller Highwater once the communication goes out and is analyzed by our group of experts.  We’re sure to post our thoughts soon after.

“I’m not a labor lawyer, but I do have some personal experience with WARN and employers’ obligation to pay accrued vacation. So, until the labor experts weigh in here, I thought I’d share a few thoughts.

As noted in the site link provided by Anonymous, as a general rule, employers can tell employees when to take vacation. It’s only common sense that on-going businesses need to be able to manage their business in an orderly fashion. What if all the Best Buy sales people wanted to take their vacation the week before Christmas? Employers have to be able to make sure vacations are scheduled to fit the needs of the business. But telling an employee when they can take their vacation is different than telling an employee that he must take a vacation, and it’s really, really different than telling an employee she must take a vacation after sending out WARN lay-off notices.

WARN obligations and accrued vacation/PTO obligations are two separate and distinct employer obligations. I’ve never heard of, and can’t find any authority for an employer trying to diminish its accrued vacation obligations by forcing employees to take vacation during a WARN notice period. The closest thing I could find was an article about how an employer can’t force employees to use their accrued vacation during a temporary shut-down without giving the employee at least nine months notice. The article cited to California Labor Code section 223.3, which states:

“Unless otherwise provided by a collective-bargaining
agreement, whenever a contract of employment or employer policy
provides for paid vacations, and an employee is terminated without
having taken off his vested vacation time, all vested vacation shall
be paid to him as wages at his final rate in accordance with such
contract of employment or employer policy respecting eligibility or
time served; provided, however, that an employment contract or
employer policy shall not provide for forfeiture of vested vacation
time upon termination. The Labor Commissioner or a designated
representative, in the resolution of any dispute with regard to
vested vacation time, shall apply the principles of equity and
fairness.”

Interestingly, this article was written Heller labor lawyers and posted on Heller’s website.http://www.hewm.com/en/news/industry/industry_1103.html

I’ve been mulling it over, but just can’t see how it’s fair or equitable for Heller to force some of the employees who it’s just notified it’s laying-off to use their accrued vacation just so it won’t have to pay them what they’ve accrued, what they’re owed. The WARN act says you have to either give employees 60 days notice of their impending lay-off or, if you want them to leave sooner, you have to pay them 60 days salary (on top of accrued vacation and whatever else they’re owed). The Heller WARN notice told employees there’s work for them and that they’re expected to show up. If Heller doesn’t need or want employees to show up, the fair and equitable thing to do is should pay them their 60 day WARN money and whatever else they’re owed, including accrued vacation. It is not fair and equitable to lower the amount owed and paid to some employees — just those with accrued vacation — by forcing them to to use up their accrued vacation.

I think it’s great that Heller management has acknowledged its WARN obligations, and I’d like to think this business about requiring employees to use up their vacation time is an inadvertent mistake or miscommunication because the idea is not just probably illegal and definitely unfair and inequitable, it’s also just downright cheesy. Putting the squeeze for a few more bucks on some of the loyal employees you’ve just told are going out on the street in two months doesn’t gibe with a genuine concern for your employees.

Of course Heller management could ask employees to voluntarily use up their accrued vacation, leaving it to each employee to decide without fear or pressure whether or not they want to make a contribution to the Heller shareholders capital restoration fund. As was pointed out above, according to the numbers that Larrabie gave out yesterday, Heller’s debt is about $50 million less than its expected accounts receivable collection. At the end of wind-down, after the debts and creditors are paid off, whatever is left presumably gets divvied up among the former partners– where else would it go? Of course I don’t know whether the shareholders will get all their capital and missed draws back, but using the numbers Larrabie gave, and adding in Heller’s other assets, including the value owed to Heller for business taken to other firms, it seems like there should be quite a bit of money for the shareholders. So I’m not sure why any employee would want to give away their accrued vacation, moreover I certainly hope Heller doesn’t descend to a level of weaselry where it tries to force its employees to do so.”

Vacation Accrual – What You Should Know

If you have seen the WARN Notice sent out via e-mail this afternoon, you may notice this interesting phrase at the end of the first paragraph:

“Where applicable, employees with accrued but unused vacation time may be scheduled for vacation prior to November 28.”

If you are “asked” to take vacation between now and November 28th, realize that this does not benefit you as a Heller Ehrman staff member – it only benefits the shareholders.  Here’s why:

- if you have accrued a large amount of vacation time, it is in the shareholders’ best interest to reduce that amount of money to which you are legally entitled and which must be paid upon your termination;

- if between now and November 28th there is not enough work for you in your position or your department that is not your problem – you need to make yourself available for work each day and making sure work is available is up to management;

- with the projected figures of $118 M accounts receivable less $50 M in loan debt, there should be plenty of money left to pay accrued vacation to Heller Ehrman staff;

I can’t emphasize this enough: if management asks you to take vacation please reconsider.  You can certainly do job hunting, etc. but you can’t really go and work for another firm during that period or make any other plans.  What you do after November 28 is your business.

And if management goes beyond “asking” and makes a demand, then please post comments here.

There are certain provisions of the California Labor Code which govern how vacation accrual must be paid and whether or not an employee can be mandated to take vacation in lieu of payment upon termination.

So gang, do not go and pack those suitcases for a vacation.  Besides, you are stuck on the S.S. Heller Ehrman with some of the most creative, funny, emphatetic and caring people you could ever ask for.  Not a bad place to be for the next 60 days, right?

Over and out

Heller Drone
Cruise Director

WARN Act Notice

Several people just received this via e-mail just now.  Any employment or labor associates want to weigh in on this?

I regret to inform you that The Firm has adopted a plan of liquidation and will shut down substantially all of its operations on or about November 28, 2008.  At the time of the shutdown, the employment of The Firm’s employees will be permanently terminated.  Until then, please be aware that The Firm has work for you and expects you to report to work.  Employees will be paid full salary and benefits until the shutdown.  Where applicable, employees with accrued but unused vacation time may be scheduled for vacation prior to November 28.

You do not have displacement or bumping rights for other positions within The Firm.  However, in order to conduct an orderly liquidation, The Firm may continue to employ a very limited number of employees after the date of the shutdown.  If you wish to be considered for such work, please notify me by email; The Firm will let you know about past November 28 work within the next few days.

This letter constitutes notice to you pursuant to statute.  As a terminated employee, you may be entitled to certain benefits, which will be the subject of a separate communication.  The shutdown is being treated as a plant closing under relevant law, and includes the termination of employment of employees employed at 333 Bush Street, San Francisco, California 94104.

In the event you require additional information, please feel free to contact **************** or HellerEhrmanMgmt@hellerehrman.com.

Sincerely, 
Heller Ehrman Management