Filing a Proof of Claim: Part 2 – What To Claim

(Note: this is a multi-part post concerning how to file a proof of claim in the Heller Ehrman LLP Case: 08-32514 bankruptcy in the United States Bankruptcy Court, Northern District of California)

Before being able to calculate the amount owed to you by Heller Ehrman as a former employee, you should understand whether or not the following situations apply to you:

1.  Are You Owed Accrued Vacation?

Many ex-Hellerites did not receive accrued vacation especially if they were terminated on October 10 or October 17, 2008 or on a subsequent date.  The only exception would be members of the Stay Team (employees requested to work past November 28, 2008 to help wind down the affairs of the Firm)who were paid the accrued vacation they earned during their stint on the Stay Team. See Accrued Vacation for Stay Team Members for more information.

2.  Are You Owed WARN Act Monies?

In the September 26, 2008 Dissolution Email, it was communicated to employees 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.”

Regardless of whether or not your office had less than 50 or 100 employees and regardless of whether or not your office expereinced less than 50 or 100 layoffs/terminations, you should still claim WARN Act monies on your Proof of Claim.

The WARN Act provides that employees, under certain circumstances, must be given a 60-day warning notice of a company’s shutdown or paid their normally earned wages during the 60-day period if the company shuts down prior to that date.

If you left the Firm prior to September 26, 2008 or were terminated for cause, you should not consider yourself eligible to claim WARN Act monies.

3.  Are You Owed Waiting Time Penalties? (California only)

For all California employees, you are entitled to one day’s wage (up to 30 days) for each day that your employer did not pay you your wages (including accrued vacation) or did not have your final paycheck ready for you on your termination date.  

Most California employees will be able to claim the entire 30 days wages since very few, if any, employees did not have an accrued vacation balance.

Even if you attended a wage claim hearing with the California Labor Board and even if Heller Ehrman stated its case that it would not pay penalties because its behavior was not willful (since the banks supposedly called the shots), you should as a California employee be claiming the Waiting Time Penalties.


8 Responses to “Filing a Proof of Claim: Part 2 – What To Claim”

  1. 1 Observer 4 January 2009 at 7:29 pm

    “If you left the Firm prior to September 26, 2008 or were terminated for cause, you should consider yourself able to claim WARN Act monies.” Tom, was this supposed to say ‘probably cannot claim federal WARN Act monies’? Aren’t ‘left before Sept 26’ and ‘terminated for cause’ disqualifying factors for WARN Act claim status? per WARN Act, 29 USC 2101(a)(6)(A): “other than a discharge for cause, voluntary departure, or retirement”

  2. 2 Thomas MacEntee 4 January 2009 at 7:33 pm

    Corrected – I am suffering from postitis today. I appreciate your help.

  3. 3 Observer 4 January 2009 at 7:48 pm

    In giving general information, you’ve taken on a large task.
    Much appreciated by all.
    Inevitable that minor errors will creep in.

  4. 4 Former Secretary 6 January 2009 at 9:06 pm

    Just curious, why do only CA employees have a waiting time penalties? What exactly does it mean? Thanks!

  5. 5 Observer 6 January 2009 at 11:10 pm

    A note on attorney’s fees. Most people will not have this as an element of their claim, but it is important for those who do:

    If you have incurred and paid attorney’s fees in dealing with Heller over wages and benefits related to your termination, these attorney’s fees can be included as another element of your claim.

    (Per a Supreme Court case from 2007. And Judge Montali is on record as believing that the case applies generally to unsecured claims.)

  6. 6 Observer 6 January 2009 at 11:16 pm

    Clarification: The attorney’s fees element is available only if you can show some contractual basis on which either you or Heller would be entitled to attorney’s fees in an employment dispute between you. There might also be some statutory basis for attorney’s fees, either in the Cal. Labor Code or the WARN Act.

    Just wanted to alert people who have incurred attorney’s fees to consider whether they may be a recoverable element of your claim.

  7. 7 anon2 6 January 2009 at 11:51 pm

    My guess would be to include attorney’s fees if in doubt. The court will definitely let you know if it’s allowed for your claim. Just like the IRS – they point out your mistakes free of charge!

  8. 8 Observer 7 January 2009 at 8:19 pm

    If there is an objecgtion to your claim in the bankruptcy case, that is not a ‘free of charge’ correction. The debtor will likely object to your claim outright, forcing you to participate in a court process to get the valid portions of your claim through.

    You should not understate your legitimate claim, but it is far better to get it right the first time rather than incur possible delay, legal expense, and even loss from an incorrect claim.
    You should also remember that — while this is rarely invoked — you are filing the proof of claim under penalty of perjury. (See the fine print at the bottom of the claim form. Signing it is essentially making a declaration.)

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