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Checklist: What You’re Entitled to After a Layoff or Resignation

October 17th, 2015 Christopher Davis

Leaving your place of employment is often difficult, no matter whether you’ve been working for 10 months or 10 years. You might be switching jobs, taking on a better offer, retiring, or perhaps you’ve been laid off. Regardless of the circumstances, the transition can be an emotionally turbulent one, especially if it wasn’t your choice. However, even though employment changes can be stressful and overwhelming, it’s crucial not to lose sight of your entitlements in the wake of leaving your job.

Whether you are laid off or choose to resign, our firm has mapped out some important points to keep in mind as you separate from your workplace. While not exhaustive, the following list can help guide those navigating the separation process and clarify important information about employee entitlements.

  1. Ask about your accrued vacation pay.

If an employee has earned vacation time, and if there is no written forfeit policy, then the employer must pay the employee for all accrued vacation. However, New York courts have held that wage supplement agreements can specify that employees lose accrued benefits under certain conditions. If your employer claims that this applies to you, first ensure that you have notification, in writing, of the conditions that nullify your benefits. Aside from accrued vacation pay, these can also include accrued paid sick leave or any other wage supplements. If your company has not provided any documentation of a forfeit policy in your employment agreement or employee handbooks, you are automatically entitled to any accrued wage supplements—even if you are terminated or leave the company on bad terms.

  1. Obtain your employers’ agreement not to contest a claim for unemployment.

Whenever an employee files a claim for unemployment compensation, their former employer has the right to contest the claim. While companies do not pay directly out of pocket, they must pay both state and federal unemployment taxes—and the amount they are taxed correlates to their employee turnover rates and number of past unemployment claims. If you file a claim, your employer will be notified and will have the opportunity to either endorse your claim, or contest it.

In many states, employers simply do not respond to notices from the Department of Labor regarding unemployment claims from past employees—particularly if they have already reached an agreement not to contest the claim with the employee during severance negotiations. In New York State, however, employers cannot legally ignore or disregard such correspondence. As of 2013, the New York Department of Labor mandates that employers “adequately” respond to unemployment insurance correspondence within 10 calendar days of the notice. In order to meet this standard, employers must specify the reason for separation, specifically including any issues concerning the claimant’s eligibility or entitlement for benefits. For this reason, it is crucial to discuss any potential claim for unemployment insurance with your employer before you leave the company.

Typically, individuals who lose their jobs through no fault of their own and who are actively seeking full-time employment will receive unemployment benefits. Even if you leave “voluntarily,” you’re still not automatically disqualified from receiving unemployment benefits. Leaving a position due to reduced pay and/or hours, harassment, age discrimination, unsafe or hostile working conditions, etc. are all considered good cause for a “constructive discharge,” meaning you are still eligible for a claim. If, however, you’ve been dismissed due to misconduct, your employer has the opportunity to contest the claim and argue for your ineligibility. Even if you’re unsure whether this applies to you, try to negotiate a no-contest clause into your severance agreement. If the case is not a particularly strong one, your opposition may be a deciding factor in dissuading employers from contesting your claim.

  1. Ask for a positive, or, at the very least, neutral reference from your employer.

Make it a priority to discuss your future references with your soon-to-be-former employer. Your work history is considered the best predictor of your future conduct, so references will have a tremendous impact on how you are perceived by hiring personnel at other potential places of employment. Do your best to leave gracefully, regardless of the circumstances behind your separation. Before leaving, approach your boss or a supervisor and ask simply, “Would you feel comfortable providing a good reference for me?” Consider leaving behind a resume and ask your former employer if you can provide anything else to make giving the reference easier. Ready-made, concrete examples of how the company benefited from your work, for instance, is great material for new potential employers, and may prevent your former employer from commenting vaguely on your performance or providing a lukewarm character reference.

  1. Ensure that you receive reimbursement for all business expenses.

Whether your business expenses are related to travel or office purchases, you are entitled to reimbursement if your employer has agreed to do so. While there is no law in New York that explicitly requires employers to pay or reimburse employees for business-related expenses, New York Labor Law §198-c is widely interpreted to impose such requirements on employers, by obligating them to “abide by the terms of [their] agreement to provide benefits.” Unless an employer has specifically stated that they will not reimburse business expenses, it is reasonable to expect them to do so. A history of repayment in other instances may be sufficient to establish an agreement. Generally, employees should expect to receive a separate payment for expense reimbursements in addition to their full amount of wages.

  1. Push your employer for timely payment of all wages.

Unfortunately, too often employers seek to take advantage of employees who are leaving the workplace, cutting corners on last-minute wage payment obligations in the hopes that the employee doesn’t notice. Don’t let this happen to you. When preparing to leave your place of employment, be especially cognizant of the wages you are owed for your last pay period, taking into account any earned but unpaid overtime, commissions, or bonuses. Particularly if you’ve left on bad terms, or if you know the company is in a bad financial position, it’s important to scrutinize your payment to ensure that you’re not being made a victim of unfair wage practices. If you do find that your employer is treating you unfairly or refusing to surrender your wages or wage supplements, contact our office for a free consultation immediately. As always, we can be reached at (646) 430-7930, or via our online contact form here.