DEAR CARRIE: I recently worked in a place that was horrible. After I returned from maternity leave, my boss told me she could no longer pay me what my contract stipulated and slashed my pay. After a while, I looked for another job, and found a position with great pay. When I told my boss I was leaving, she emailed my new employer to say she didn’t appreciate it stealing one of her employees. She is so controlling, and I feel she was dishonest in going back on her contract. I feel that since she didn’t honor the contact I had a right to get a new job. What do you think? — Who’s Right?
DEAR Who’s: Her behavior toward you was questionable, if not illegal on several fronts.
“If the employee really had a contract to be paid at a particular rate, then the employee may be able to enforce it, and obtain a court judgment for the difference between the amount she was supposed to be paid and the amount she was actually paid,” said employment attorney Richard Kass of Bond, Schoeneck & King in Manhattan.
But if you didn’t make a fuss about that pay cut at the time, that could work against you.
“The employer might be able to argue that the employee agreed to amend the contract when she accepted the lower rate,” Kass said. “It’s hard to tell how that dispute would be resolved without knowing more details.”
If your former boss instituted the pay cut to punish you for taking a leave, that would be illegal.
“If the pay cut was in retaliation for the maternity leave, then that would be a form of unlawful sex discrimination,” Kass said. “If the maternity leave was covered by the Family and Medical Leave Act, then the retaliation would violate that law, as well.”
Fortunately you got a new job, but if your former boss had convinced your new employer not to hire you, she might have been on shaky legal ground there, too.
“If competing employers collude with each other not to hire each other’s employees, that may violate antitrust laws, because it stifles wage competition,” Kass said. “It sounds like the boss’s email to the prospective employer may have been an attempt to enforce that type of unlawful understanding.”
But he added, “if the two companies don’t compete with each other, then the boss’s email probably didn’t violate any laws.”
DEAR CARRIE: When employees are laid off and given severance payments, do they still qualify for unemployment benefits? I seemed to recall that if they waited to start receiving severance, they could qualify for unemployment benefits in the interim. And if the severance is, say $15,000, would they divide that by $435, the current unemployment maximum, to get the number of weeks until they could collect unemployment? And would the 26 weeks of unemployment benefits pick up at that point or would they have run out? — Benefits Math
DEAR BENEFITS: Your eligibility for unemployment benefits will depend in part on how much you receive in severance payments and when they start. Here is what the Department of Labor’s website says about benefits eligibility, including when severance payments are deferred:
You may be eligible to collect benefits if: “The weekly amount of dismissal/severance pay is the same as or less than the maximum weekly benefit rate [currently $435 a week]; or the dismissal/severance pay is stopped and you have enough earnings in the base period to establish a claim,” or lastly, “you receive your first dismissal/severance payment more than 30 days after the last day you worked.”
A base period is generally the 52 weeks preceding the filing of a claim; the department website has information about earnings requirements in the base period.
You might be ineligible for benefits if: “You receive weekly dismissal/severance payments that are greater than the maximum weekly benefit rate, or your employer gave you a lump sum payment and the weekly pro-rated amount of the payment is greater than the maximum weekly benefit rate.” The website adds: “Usually, the time period covered by the lump sum payment will be clearly spelled out in your severance/dismissal pay agreement or plan.”