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Weintraub Attorneys Nikki Mahmoudi and Tomiwa Aina discuss the essential documentation and paperwork employers need to provide when an employment relationship ends. From final paychecks to COBRA notices and WARN Act requirements, this episode of California Employment News provides key insights to help employers stay compliant.
Watch this episode on the Weintraub YouTube channel.
Show Notes:
Nikki: Hi, everyone. Thank you for joining us for this installment of California Employment News, an informative video and podcast resource offered by the Labor and Employment Group here at Weintraub Tobin. My name is Nikki, and I’m an associate in the group, and I’m joined by my fellow associate, Tomiwa Aina. In previous CEN, we’ve talked about termination of the employment relationship. Today, Tomiwa and I are going to discuss documentation and paperwork employers will want to provide employees when the employment relationship ends. Please note, this is only a general overview and may not necessarily be exhaustive of all documentation employers are required to provide their employees. Tomi, did you want to start us off by talking about employees’ final paycheck?
Tomiwa: Yes. Thank you, Nikki. Regardless of how the employment relationship ends, whether that’s because the employee resigned from their employment, the employer terminated the employee, or there was a reduction in force, you will have to provide an employee with their final paycheck, including all earned wages, any accrued vacation, or paid time off. But note that the timing of when the employee receives their final paycheck can depend. For example, an employee without a written employment contract for a definite period of time who quits without given 72 hours prior notice to their employer must be paid all of their wages, including accrued vacation within 72 hours of quitting. Whereas an employee who gives at least 72 hours’ notice prior to their quitting and quits on the day that they have given in the notice must be paid all their wages at the time of their quitting. Similarly, employees who are discharged must be paid all wages due at time of termination. Nikki, can you tell us generally about some documents that employers will want to provide to their employees?
Nikki: Yeah, of course. I’m happy to provide some general ideas of documents employers will want to provide, as we said at the beginning of the video, this may not be exhaustive. It’s just some things you’ll want to consider. When employees are involuntarily terminated, and by that we mean they’re discharged or there’s a layoff, the company must give immediate written notice to the employee of a change in the employment relationship under unemployment insurance code section 1089. Now, that notice must contain certain information. That’s going to include the employer’s name. Another thing you will want to provide is the name of the person to contact at the company if the Employment Department division, otherwise known as the EDD, needs further information. You’ll also want to provide the employee’s name, their Social Security number, the type of action, so whether that’s a voluntary quit, layoff, termination, etc, and the date of the action. With this notice, you’ll give a copy to the employee and then retain a copy for your records. An employee must be given a copy of the notice no later than the effective date of termination. Employers can request that the employee sign acknowledgement of receipt of the notice, but you are not required to do so by law. Continuing on that on the topic of discharger laid off employees, the employer must provide the employee with Employment Development Department Pamphlet DE-2320, which that will explain to employees their rights to unemployment insurance, state disability insurance, and paid family leave. This must be distributed no later than the effective date of that termination or layoff. Now, another thing to think about is with employers with 20 or more employees, COBRA, otherwise known as the Consolidated Omnibus Budget Reconciliation Act, rights notice and election form needs to be provided to employees who are participating in the employer’s group health plan, and to any of the terminated coordinating employees’ dependents on the plan within the time requirements under CROBA regulations. I know earlier we were talking about employees who have been discharged or laid off. This is for any employee where the time a relationship ends. It’s not limited to just discharge or laid off employees. For smaller employers, employers must notify any covered employees of their CalCobra continuation rights. We’re talking about smaller employers, we’re talking about under 20, so between 2-19. CalCobra will be offered to both the terminated employees of small employees, like we talked about who are participating in the Employers Group Health Plan, and terminated employees covered under federal Cobra when their 18 months of federal Cobra coverage expires. One other thing to think about is that the California Department of Health Care Services requires employers with 20 or more employees to provide the health insurance premium plan, or sorry, premium payment, otherwise known as HIP notice, DHCS9061 to certain employees who would be covered under the program. Tomi, are there any other general documents or things employers will want to provide employees or think about?
Tomiwa: Yes, Nikki. There are some things that employers should also consider. California Labor Code Section 2808(b) requires employers to provide to their employees upon termination a notification of all continuation, disability extension, and conversion coverage options under any employer-sponsored coverage for which the employee may remain eligible after the employment terminates. Act. Additionally, the Worker Adjustment and Retraining Notification Act, otherwise known as the Warn Act, requires certain employers to give their affected employees at least 60 days written advanced notice of any planned closings or mass layoffs. Now, California’s version of the Warn Act is broader in scope than the federal act and affects more employers. So, this is something that you should be considering as a California employer. Covered employers in general are employers who are covered by the federal Warn Act if they have 100 or more employees, not counting part-time employees who have worked less than six months in the last 12 months. That does also not include employees who work an average of less than 20 hours a week. Now, the federal Warn Act also applies to employers who employ 100 or more employees and who together work at least 4,000 hours per week. So, think of plans, and those are the type of employers that you want to be considering here. Now, under California law, employers who directly or indirectly own a covered establishment must give notice to the affected employees of the covered establishment. Now, a covered establishment is any industrial or commercial facility or part thereof that employs or has employed 75 persons within the preceding 12 months. There is no requirement that the worker be employed full-time in California. So, both full-time and part-time employees will be countered towards California 75-person requirement. Now, this is a general overview of the Warn Act. We could probably spend all day talking about this. It’s always helpful to take counsel on whether or not it applies to your company and workforce. So please let us know if you have any questions.
That’s it for now, though. You can continue to find our video series and podcast through the lelawblog.com or on the Weintraub Tobin YouTube channel. Thank you, everyone, for joining us, and we look forward to reconnecting with the next edition of California Informed News.