7 Tips on Negotiating Severance

If you suspect or are completely aware that you are about to be presented with a separation agreement at work, you might want to start thinking about your severance package. What’s important to you? What do you expect? What can you accept? What can you NOT accept? If you have no idea where to start when attempting to outline a basic needs and wants list for your soon to be presented severance package, take a few minutes to figure it out before you are asked for a decision on the matter.

Here are 7 Things to Consider in Relation to Any Severance:

1. Know both sides of the agreement: Don’t just know what you’re getting from the company; know what the company is getting from you. And vice versa. You separation agreement signature is worth money since it limits the number legal issues you, the “terminated employee”, can bring against the company.
2. The range of potential financial outcomes is “wide”: Top executives can usually expect to see their severance terms spelled out in their contract of employment. For others, from corporate ranks to upper-level management, things are more unclear. Informal guidelines and the rule of thumb come into play. The rough average is two weeks of pay for every year of employment (it can range from 1-4 weeks depending upon the circumstances at hand).
3. What you get depends on specific factors: Tenure on the job, performance records, reason for the termination, etc. can all come into play when the numbers are being discussed.
4. Work History: The first thing you probably want to examine with an employment lawyer in relation to severance negotiations are any documents that are available that chart your history at the company and how well you performed for them on the job. Documentation could determine whether you have a discrimination case to pursue or not. At the very least, hints of untoward behavior could lead to increased leverage for you during negotiations.
5. Your knowledge of company flexibility: It’s useful if you have some knowledge regarding what is off limits and what you can openly ask for when negotiating your severance. Some things are simply outside of your boss’s control. For instance, your boss can’t make exceptions to laws in place. There’s also not a lot of leeway regarding employee benefits. But many employers have funds earmarked for outplacement services.
6. Tap into relationships: If it’s useful, call relationships you have with bosses, human resource directors, etc. into play during negotiations. It can make a difference. If you have a close relationship with the boss or someone who will be on the other side of the severance negotiation table use it. And make sure to let you employment lawyer know that the relationship exists, too.
7. Look to the future: It’s not all about money. This agreement could affect your long-term career. You want to consider future job references and work history, etc. before you sign off on the severance.

Remember, at that first meeting when you are presented with your severance, you’ll be in shock. Even if it’s not a complete surprise, don’t sign anything. Try to politely request a meeting at a later date to wrap things up and get in touch with an employment law attorney at Blumenthal, Nordrehaug & Bhowmik to handle your severance negotiation. 

Discrimination Case Filed by Ex-Wilson Elser Attorney

Jodi Ritter, a former nonequity partner of Wilson Elser Moskowitz Edelman & Dicker sued the firm with claims that she was subjected to harassment and discrimination for her choice to have children. She left the firm in late 2012.

Ritter described the state at the firm by stating, “By contrast, women who did not have children and who availed themselves of affairs with partners were systematically rewarded and treated better than women who chose to have children and families.”

The firm, in response to the claims made in the suit, said that the allegations were baseless and lacking in any legal merit. They advised that they would be vigorously defending themselves and they were looking forward to the adjudication of the matter. The firm filed Motion to Dismiss on Friday claiming that claims are wholly without merit and precluded by the arbitration clause of her partnership agreement.  

Ritter spent five years as a special narcotics prosecutor in the Brooklyn District Attorney’s Office before joining Wilson Elser in 1997. She stated that she didn’t have any problem meeting her billable hour quota and that she received bonuses and raises consistently until she became pregnant. Ritter announced her pregnancy in 2002. The chair of the firm’s labor and employment litigation practice, Ricki Roer, allegedly pulled Ritter aside and said, “That’s why women can’t move up in this firm.” Roer continued to explain that getting pregnant could have a negative impact on any attempt Ritter had to move up as a female in the Wilson Elser firm. Roer continued by saying that women who do get pregnant in the workforce make it harder for women who want to make a career because it makes women look weak.

Ritter gave birth to twins in January 2003. After three months of maternity leave Ritter’s twins were still in intensive care. She requested additional time. She was advised that her job could not be held if she could not return after the three months. Ritter said she had to get permission to spend one more month with her twins from the regional managing partner. In May of 2003, Ritter was required to attend a Women’s Bar Association event. Her twins were having health issues. After four hours, she asked a partner at the table, Jerold Ruderman, if she could leave to care for her sick children. She claims he said no and that she couldn’t leave an empty seat at the table where Mr. Ruderman’s wife (a sitting judge) was seated.

Ritter was transferred to the firm’s White Plains office approximately one year after her children were born.

Ritter also claims:

• Roer was known to rebuff women’s requests for childcare accommodations.
• When her husband became ill, the firm’s only concern was her ability to maintain her billable hours.
• Women in the firm who made themselves available to male partners were protected.

Upon her firing in December 2012, Ritter was told that the firm had too little work to sustain her position. She argued that she had a number of open cases as well as a number of clients preparing to send her more work. At that time she had billed 1,930 hours. She was one week away from billing 1,950 hours. And her average billing from years past was 2,000 hours per year.

Ritter filed suit because, she claims, the firm affected her ability to further he career. She worked there for more than 16 years. As Ritter’s attorney said, “She gave her life there.” Ritter is seeking damages based on lost wages and pain and suffering as well as punitive damages.

For more information on discrimination in the workplace or wrongful termination please contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Fashion vs. Faith at Abercrombie and the Religious Discrimination Suit the Resulted

The U.S Supreme Court has announced that it will take its first hijab case to decide whether Abercrombie, the fashion retail chain, can deny employment to an otherwise qualified young woman who wished to wear a headscarf at work. U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch started in 2008. A 17-year old woman named Samantha Elauf applied for a job at the Abercrombie Kids store at a mall in Tulsa, Oklahoma. 

Abercrombie sales associates are called “models” and they are expected, as part of their job, to look good. In fact, part of the job interview is a score on how you look. Once someone is hired, the newly hired “model” has to comply with the Abercrombie “look policy” governing their overall style and how they dress.

Elauf was aware of the general situation. She asked a friend before interviewing if she could be able to wear the hijab on the job. The friend, who knew the store’s assistant manager, was told that be expected the hijab would be fine as he has worked with someone who wore a yarmulke at Abercrombie. He did say that the look policy prohibited anything black so she would have to wear a scarf of a different color. Elauf thought that would be fine. She went to her interview (wearing what was described as “an Abercrombie like T-shirt and jeans” and her black hijab). She didn’t bring up religion or her religious reasons for wearing a headscarf. The interviewer didn’t bring it up either. The interviewers did outline other requirements of the look policy (nail polish and excessive makeup). Elauf did well in her job interview. She even got a 2 out of 3 for her appearance. Her tallied score was 6, which was normally a high enough score to “score” her the job.

After the interview, the interviewer asked her direct supervisor about the hijab. She was directed to the district manager. At that point, it was decided that the headscarf would be inconsistent with the look policy. The interviewer was told to drop Elauf’s appearance score from 2 out of 3 to 1 out of 3. This put her total at 5, which was one short of a job recommendation. Elauf did not get the job at Abercrombie.  

That’s when the EEOC sued Abercrombie for religious discrimination. It appeared to be an open and shut case and a federal district court judge decided summarily for the EEOC. Then the 10^th Circuit reversed. In a split decision, the court didn’t send the issue to trial, but instead issued summary judgment for the retail store, Abercrombie & Fitch. The court reasoned that Elauf hadn’t told Abercrombie that she would require religious accommodation under the look policy in order to wear her hijab.

A dissenting judge, Ronald Reagan appointee David Ebel, pointed out that Elauf didn’t advise the store of the need for special religious accommodation because she had every reason to assume she wouldn’t need one. She was advised by her friend (who had consulted the assistant manager) that her hijab wouldn’t violate the look policy at the store as long as she wore any color other than black. On the other hand, Abercrombie, who was in a position to know that the hijab might be in violation of its policies, never brought the issue up with Elauf. They avoided the conversation.

It is unsure exactly how the Supreme Court will handle the issue as it could be seen as an example of why flexibility may be needed when circumstances warrant it, but the Supreme Court doesn’t generally take on cases without doing so to create a principle.

If you need additional information regarding discrimination in the workplace or a hostile work environment please contact the experts at Blumenthal, Nordrehaug & Bhowmik. 

New Employment Laws In Play Regarding Licenses for Undocumented Individuals

In 2013, the Department of Motor Vehicles was authorized to issue an original driver’s license to an individual who is not able to submit proof that their presence in the United States is authorized under federal law. (California Assembly Bill 60 created Vehicle Code section 12801.9). This same bill also made it illegal to discriminate against a person who holds such a driver’s license under the Unruh Civil Rights Act. AB 60 is to take effect on January 1^st, 2015.

The licenses issued to undocumented persons under the new law will have a distinctive design/color and will have text on the photo indicating limitations for official federal purposes. Additional provisions related to the licenses were included in Assembly Bill 1660 (passed in September) to provide protections in employment context. Employers will be prohibited from discriminating against a person because they hold a license that was issued under Vehicle Code section 12801.9. Employers will be prohibited from requiring workers to present a driver’s license unless possessing one is required by the employer or otherwise permitted by laws in place. Additional provisions have been put in place to protect holders of licenses issued under Vehicle Code section 12801.9 from unlawful release of private information, use to establish citizenship or immigration status for investigation, arrest, citation, etc.

The new licenses will not be acceptable to establish eligibility for employment and they will not be acceptable for any official federal requirements or purposes. The new laws will not change the employers’ rights regarding obtaining information in order to establish an employee’s authorization to work (required under federal law). Employers will still be required to have employees provide documentation and submit the I-9 documentation to determine work eligibility. Employer action taken in accordance with federal Immigration and Nationality Act will not be in violation of the new laws regarding the licenses and the use of licenses issued under Vehicle Code section 12801.9.

For additional information regarding the new laws regarding issuance of licenses for undocumented persons or to get further information on federal work eligibility laws, contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Labor Law in Place to Help Employees Beat the Heat

A newly amended California labor code provision turns up the heat on employers in order to protect employees from the heat. Amendments allow private enforcement of laws regarding heat-illness prevention. Previously, they were imposed only by the California Occupational Safety and Health Administration (OSHA) with limited resources.

With the new provision, California employers must be even more fastidious about guarding their employees from the sun’s heat. To do so they must provide employees with cool down periods or they might end up facing litigation en masse. Any employer who has an outdoor space at their place of employment will find it vital to have a heat-illness prevention program set in motion so that employees are both allowed and encouraged to rest out of the heat for at least 5 minutes whenever they feel in danger of overheating. 

Employers may feel put out by the rules. They are required to provide shade for employees who work in the sun (especially during sunny days). This can sometimes be difficult. Necessary cool-down periods any particular employee might need are unknown and cannot be scheduled ahead of time. So employers may find regulating employee behavior to ensure they are meeting the standards for heat-illness prevention difficult. It is recommended that California employers review the policies they have in place and that they offer renewed training for managers who will be responsible for compliance and the maintenance of their compliance records.

If you have questions regarding the regulations your California employer may be required to adhere to, contact Blumenthal, Nordrehaug & Bhowmik, your southern California employment law experts. 

California Law Prohibits Religious Discrimination in the Workplace

After hearing the many stories from California employees, some are starting to wonder if California’s laws that prohibit religious discrimination in the workplace are enough to get the job done. One example of blatant religious discrimination follows.

A young Muslim woman went through the application process at a beauty supply store. During her interview she did not wear her hijab. After she was hired, she started her first day of work with the traditional hijab, a headscarf covering her hair, in place. She was told by her direct supervisor (in front of her coworkers and customers in the store) to take the hijab off or to go home.

She explained her religious beliefs and that the hijab held significant religious importance to the manager. The hijab is worn as an expression of devotion to God. It’s also a symbol of modesty and privacy. It’s not unique to Islam. After her thorough and careful explanation, she was sent home for not removing the hijab. She is allowed to keep her job, but her hours are cut back and she is asked to work in the back of the store. 

This is just one of many examples of religious discrimination in the workplace. Muslims face a number of difficult situations such as this, most of which are listed in the Council on American-Islamic Relations’ (CAIR) newest report regarding the civil rights of Muslims in California. The California offices of CAIR received 933 complaints in the last year. The Los Angeles branch received 444 complaints (the highest of any of the CAIR California offices).  

A 2012 California law prohibits religious discrimination in the workplace, but in spite of the intention of the law to provide protection, many are still reporting hostile work environments, alleged harassment, retaliation for political/religious beliefs, wrongful termination, etc.

Under California’s Workplace Religious Freedom Act, employees must provide employees with reasonable accommodations to suit religious beliefs and associated observances. The only exception is if doing so would cause “undue hardship.” To discuss the specifics of what constitutes an “undue hardship,” the meaning of “religious observance” and “religious belief” according to California law, etc. contact the employment law experts of southern California at Blumenthal, Nordrehaug & Bhowmik. We can assist you in determining what rights you have and how you can protect yourself from hostile work environments. 

Undisclosed Settlement Amount Agreed Upon in Neiman Marcus Wrongful Termination Suit

Neiman Marcus recently settled a wrongful termination lawsuit. The suit was filed by former Neiman Marcus employee, Amir Peleg, who claims that he was fired for being gay and Jewish. Peleg asked for $40 million in punitive damages and $16 million in compensatory damages for economic loss as well as emotional pain and suffering. A Los Angeles County court clerk recently announced that the department store giant settled the wrongful termination lawsuit. The jury trial for the case began on September 2^nd, 2014. It was still in progress when both parties agreed to a settlement agreement. The details of the agreed upon settlement were not released to the public and neither attorney could be reached for comment regarding the settlement.

Peleg is 59 years old. He is a former salesman for the Neiman Marcus fragrance department located in Beverly Hills. He claims that he was harassed about both his sexual orientation and his religion by his supervisor. His supervisor, Miryam Emamian is an Iranian woman of Muslim faith. It was noted in court that she refused to approve time off for Jewish holidays and that she made derogatory comments when he requested vacation time to go visit Israel. Peleg also claimed that his direct supervisor, Emamian, kept portions of bonuses he was given for exemplary sales. (Bonuses were in expensive beauty products). She was fired in 2008. Peleg’s attorney said that his client was an exemplary employee and a top associate with close to $1 million in sales/year. After his dismissal from Neiman Marcus, Peleg had to move out of his home and file for bankruptcy.

Neiman Marcus claims that Peleg was dismissed because he provided thousands in free samples of expensive face cream product and that the product he gave away as “free samples” eventually made its way to a Chinese website where it was sold for profit.

For more information on wrongful termination contact the California employment law experts at Blumenthal, Nordrehaug & Bhowmik.