can I negotiate my severance package if i've got dirt on the company?

[swong171]

I was let go from my job (retail sales associate) and given a 2weeks severance and paid insurance till the end of May. They also gave me a release form to sign....basically saying it was a mutual parting (which it wasn't bc they fired me) and waiving all rights/claims regarding the company and its employees. I feel they are basically trying to buy me off because prior to me leaving I had some issues with the managers. I also brought up the issue of overtime pay because I looked thru my last paycheck and saw that I worked 96.12 hrs in the 2wks pay period and was only given 1.45 hrs of OT which made NO sense. Also I get commission on all my sales. Should that be accounted for and averaged out when paying me OT? I'm pretty sure they messed up big time because when I brought it up to the employer they said OT hours are calculated by all hours worked over our 9hr work day. Sounds off to me. NYS labor laws says anything over 40s hr/per work week. If they are messing up on my paycheck chances are they are messing up on at least 20 other employees. I could tell all these employees about the OT error and the company would owe a lot in unpaid wages. Based on all this info and some other minor inappropriate actions happening could I ask for a better severance? Say 1 or 2 month severance instead of 2 wks? I've been employed with them for about 9months. I just feel I deserve more than 2 weeks for emotional distress and use of my personal time dealing with this issue.

 

[Peppermint]

Using "dirt" on the employer to negotiate your severance package is, in this case, definitely a lose/lose. The employer could very well pull the package altogether. You do know that any clause in the severance package that prevents you from filing a wage claim is not enforceable, right? You cannot waive your right to file a wage claim. I suggest you take the package and file the wage claim; you could end up with no severance at all otherwise.

Here are the rules regarding overtime pay for nonexempt employees who receive commissions in a retail establishment"

§ 778.117 Commission payments—general.
Commissions (whether based on a percentage of total sales or of sales in excess of a specified amount, or on some other formula) are payments for hours worked and must be included in the regular rate. This is true regardless of whether the commission is the sole source of the employee's compensation or is paid in addition to a guaranteed salary or hourly rate, or on some other basis, and regardless of the method, frequency, or regularity of computing, allocating and paying the commission. It does not matter whether the commission earnings are computed daily, weekly, biweekly, semimonthly, monthly, or at some other interval. The fact that the commission is paid on a basis other than weekly, and that payment is delayed for a time past the employee's normal pay day or pay period, does not excuse the employer from including this payment in the employee's regular rate.

[36 FR 4981, Mar. 16, 1971]

However. If the establishment meets the criteria for a "retail establishment", the employee does not need to receive the premium portion of overtime (just straight-time) IF the commissions for a representative period (say a month) exceed one-half of the employees' regular pay. Subpart D here:
http://ecfr.gpoaccess.gov/cgi/t/tex...xt&node=29:3.1.1.2.39&idno=29#29:3.1.1.2.39.4

What other "inappropriate actions" are you talking about?

 

[bluemann33]

I agree, take the severance package they offered you before you get nothing at all.

 

[swong171]

so based on the OT/commission rules, when calculating my OT hours my employer needs to include my commission into the time and half rate? For example, if I make $21/hr and make 3% commission on all my personal sales (avg.$500) per week, work at least 40hrs and my time and half rate is $31.50, how is my OT be calculated? What amount should I be receiving? I don't think anything regarding my commission was included in my last paycheck with OT hours.

 

[swong171]

The release form doesn't state anything specific on waiving wage claims...just says waive all claims associated with the company and its employees. So if I sign this release I could still go after them if there are any unpaid wages? Is it against the law for an employer to have you waive your rights to wage claims even though i sign a release that says i waive all my rights regarding the company?

The inappropriate actions I have spoken to my supervisor about (above my manager) and they said "appropriate action" will be taken. I'm guessing they gave him a verbal warning or something because he is still at the company.
My store manager decided it was ok for him to drop his pants in the store (while we were open) to show off his leg tattoos. He did have underwear on i think but i thought this was completely inappropriate! i don't believe he was trying to be a perve but still very inproper. He has also said comments to me like " you can slut it up now that your ex-boyfriend moved out". He said it in a joking way and other people were around when he said this. I did not find it funny and was uncomfortable with the comment. I know I may have ground to sue for sexual harassment but I really would rather get my OT wages taken care of and just give me my severance so we can all move on! I'm sure if I sue for sexual harassment and the improper OT pay ( not only for me but other employees as well im sure) then it would be a lengthy case and I just don't think i have the energy or money for it.

 

[cbg]

To respond to the question you asked in another thread, you have no legal leverage to "go after them" because of not getting any vacation or sick days, because no law in any state requires that you be given any. There are laws about how they have to be handled if they are offered, but no laws anywhere in the US requiring that the employer provide them.

 

[Peppermint]

IF overtime premium is required, yes, the commissions must be included in calculating the "regular rate of pay". However, the 7(i) exemption in the FLSA does not require the overtime premium if your commissions are at least 1/2 of your total pay. That was the link I gave you in my last response. It appears you didn't read it.

And of course, it was "inappropriate" for an employee to drop his pants in the store and make the comments he did. However, all they were required to do by law was make the inappropriate behavior stop.

 

[cbg]

"Appropriate Action" does not have to mean firing him. You do not get to decide what action is and is not appropriate. The employer's only legal obligation is to make the inappropriate behaviour stop. If they did, then you have no claim, sexual harassment or otherwise.