Many Healthcare Workers Are Demanding Hazard Pay

By: Jason Stoogenke – Updated: April 3, 2020 – 1:57 PM CHARLOTTE — Lashonda Price is a registered medical assistant for Atrium Health. She told Action 9′s Jason Stoogenke she was working in a doctor’s office, but she’s now at Atrium Health – Main — coming in contact with COVID-19 patients. “I am actually doing … Read more

Quid Pro Quo Clarice – Will Workers Compensation Insurance Carriers or Short Term/Long Term Disability Insurers Have Your Back if You Contract COVID-19?

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So, you’ve received the unfortunate news that you have COVID-19. Maybe you’re one of the essential workers or you contracted it from someone else. No matter how you got the virus, your health and personal finances are going to be affected – the latter, more so, at a time where cities are enforcing stay-at-home policies. Are there any employment protection laws that can help support you financially during this time?

In this episode of Walking Papers, attorney Josh Van Kampen of Van Kampen Law explains quid pro quos on employee benefits and which can be used in relation to the Coronavirus pandemic. One of these is the workers’ compensation benefit, which provides coverage when employees are injured or contract a disease. 04:01 He discusses what you can expect to receive from your workers’ comp, the process involved to make a claim and protections afforded to you. 06:40

Additionally, he talks about other options that can help you recover lost wages such as short-term and long-term disability policies. 16:21 As employees, you are entitled to obtain copies of your Summary Plan Descriptions, so you know what you can expect if you file a disability claim. 19:02

Atty. Van Kampen encourages citizens to contact their local government officials and senators and ask that the workers’ compensation law be amended to apply to essential workers, like those working on the medical front lines.

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Looking for more information on protecting your employment rights during COVID-19?

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Connect with us:

Our website: www.ncemploymentattorneys.com

Follow us on Facebook, Twitter, LinkedIn, and YouTube.

For more information on how Van Kampen Law can help you, call 704-247-3245 or contact the us online by filling out our confidential online intake form.

The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, This podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers. This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at NCemploymentattorneys.com, or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case.

Read Full Transcript

Intro: 00:01 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you. But unlike the company, you’ve not been drilled on how to wield them. You’re playing catch-up. There are pitfalls to avoid and counter measures to deploy that may save your job or puts you in the best position to negotiate a favorable settlement. Minutes matter. Your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power. Let’s get started.

Robert Ingalls: 00:46 What happens if you contract coronavirus at work? Many employees working jobs deemed essential are understandably worried about contracting the coronavirus, and how that will affect not only their health but their finances and their families. Today, I am here with North Carolina employment lawyer, Josh van Kampen, to discuss these issues and more. Welcome back, Josh.

Josh Van Kampen: 01:09 Good to be here.

Robert Ingalls: 01:10 Right. Now, the title of this episode is Quid pro quo Clarice – Will workers’ compensation, insurance carriers or short-term and long-term disability insurers have your back if you contract COVID-19?

Josh Van Kampen: 01:24 So I don’t know what your favorite movie was in law school or an undergrad, but The Silence of the Lambs was one that I probably watched, I don’t know, maybe 20, 30 times. And so, does everybody remember the scene where Clarice is meeting Hannibal Lecter, and he says, “Clarice, come closer, Clarice. Clarice, I need to see your identification. Come closer.” And then later on in that scene, he talks about a quid pro quo where he’ll give her information if she shares some personal information about herself. Well, in the workplace, there are quid pro quos’ that have happened with respect to certain benefits that employees are supposed to have access to.

Josh Van Kampen: 02:13 And we’re going to be talking about basically two categories of those benefits that are applicable potentially in the COVID-19 pandemic. One is a workers’ compensation benefit. So in North Carolina and probably in virtually all states in the country, employers are required to carry what’s called workers’ compensation insurance. And so, if an employee is injured at work or suffers a workplace injury, they’re literally an insurance company. You’ve seen these Aflac commercials, which are for short-term, long-term disability. That’s the second category, but there are also insurance companies that provide coverage when employees are injured or contract a disease at work.

Josh Van Kampen: 02:58 So, that’s one category we’re going to be talking about, are workers’ compensation benefits. And then the second are essentially the Aflacs’ of the world, and I should probably get a royalty for calling them out as opposed to some of their competitors. But Aflac and other companies like it, they sell to employers or to individual employees disability policies, so that if for whatever reason you are unable to report to work, there are disability policies that you may be entitled to recover some of your lost wages from. And so that’s the second category of potential benefits that listeners may be able to take advantage of with COVID-19 under these short-term and long-term disability policies. But first step essentially is workers’ compensation benefits.

Robert Ingalls: 03:52 So most people are not intimately familiar with workers’ compensation laws, and how they work, and the ins and the outs. Can you give us a brief overview?

Josh Van Kampen: 04:01 Sure. So, a normal scenario where workers’ compensation benefits would come in, would be… I like to talk about supermarkets. So let’s say a cashier was injured while walking around the supermarket to show a customer where a particular product was. They fell and they broke their leg. They would have broke their leg at work in the course of performing their duties and would be entitled to what are called workers’ compensation benefits as a result of that injury. So what does that entail? First, any medical bills that are associated with a workplace injury are covered by a workers’ compensation carrier. So you don’t have to do it on your private insurance. Second, that cashier, maybe, she’s laid up for a month recovering from her broken leg, well obviously, she’s going to be suffering a loss of income during that recovery period.

Josh Van Kampen: 05:03 Well, under the workers’ compensation laws, the insurance carrier would be required to supplement, depends by a state, but in general, supplement two thirds of her lost pay while she’s recuperating from an injury. Those workers’ compensation laws also… God forbid. Let’s say that the injury ended up having some sort of permanent restriction on that employee’s leg. Let’s say that a doctor said that she was now restricted to 90% usage of her leg or it was 10% disabled, there are formulas, at least under the North Carolina workers’ compensation law that can ascribe a value to that work injury, separate it apart from her loss of income.

Josh Van Kampen: 05:48 And then the workers’ compensation laws are good too. Because let’s say she’s only able to come back on light duty or a restricted duty or fewer hours in the week, the workers’ compensation law requires employers to work with… In other words, ease that employee back into their position. So that’s nice. And then in North Carolina, there are really robust protections for people that file workers’ compensation claims. And so you’re not allowed to be retaliated against for doing that, for example. And if we prove that somebody was retaliated against for filing a workers’ compensation claim, then we can recover, literally, tripled damages on their lost pay benefits. So it’s got a nice whistleblower protection component to it.

Robert Ingalls: 06:34 So let’s say I have a workers’ compensation claim I want to make, how do I go about starting that process

Josh Van Kampen: 06:40 Well, in gen, there are a couple of different ways to do it. But the first way to do it, you start by notifying your employer that you suffered a workplace injury. And you want to do that as soon as possible, and certainly, within 30 days if you want to avoid having problems. That should prompt the employer, if they’re sophisticated, to give you what’s called a Form 18, which is basically like an injury report or incident report to document the injury. At that point, the employer is supposed to notify its workers’ compensation carrier that you’ve been injured at work, and then the insurance carrier does due diligence.

Josh Van Kampen: 07:24 And you get sent to a doctor, and they’re determining whether or not the injury that you’re claiming was work-related or not. Because workers’ compensation insurance covers work injuries not non-work injuries. You know how insurance companies are. Sometimes, they try to weasel out of protections. And so for our listeners, if you’re claiming a workers’ compensation injury, they’re going to try to tease you or tricky you into saying something about how it was a preexisting condition, maybe you hurt yourself playing basketball when you were in college, whatever.

Josh Van Kampen: 07:59 Don’t go there. Don’t be fooled. It only applies to workplace injuries. And then if there’s a denial, there’s, at least in North Carolina, an agency called the North Carolina Industrial Commission where you can appeal a denial of workers’ compensation benefits. And at that point, if you get a denial, you should hire a workers’ compensation attorney. And there are a bunch of good ones in Charlotte. I’m not a workers’ compensation lawyer, but if you call my office, we can certainly point you in the right direction.

Robert Ingalls: 08:31 So that takes us to the big question that I have. Can someone get workers’ compensation benefits for contracting COVID-19?

Josh Van Kampen: 08:41 Well, once again, we got a law that’s on the books that didn’t envision a pandemic. And so here, we’ll have listeners nationally, we’ll have listeners in North Carolina, understand, if you’re not in North Carolina and you’re listening to this, you have to take whatever I say with a huge grain of salt because each state has its own workers’ compensation law. And a lot of times, they’re pretty similar. But all I’m going to be speaking to essentially is the North Carolina workers’ compensation law. So the North Carolina Workers’ Compensation Act does not address whether or not someone contracting COVID-19 in the workplace, whether or not that is something that you can get workers’ compensation benefits from. So that’s unfortunate.

Josh Van Kampen: 09:24 And so we’re having to, once again, try to fit this foot into a slipper that doesn’t work very well, but let’s try. So there’s a two-part standard under the North Carolina’s Workers’ Compensation Act. One is, we have to show that the employment placed the individual, the listener, at a greater risk for developing the condition than the general public. So again, look at the job. Is the person in that job at a greater risk for developing COVID-19 than other people in the public? Obviously, if you’re a first responder or if you are somebody who works in a doctor’s office, in a hospital, in a medical environment, you are more likely to contract COVID-19 than me or Rob Ingalls, my good friend.

Josh Van Kampen: 10:15 So in that instance, at least with the first part of the test, I would feel pretty good about being able to say that first responders or healthcare workers are more likely or at greater risk of developing the condition. A little bit of a closer call, let’s talk about those cashiers, those Instacart delivery folks that are keeping us safe by delivering groceries or checking out your groceries with the cashiers. To me, they’re also more at risk than the general public. Think about the cashier. I mean, they are… People queue up to them over and over and over again are well within the six feet of separation we’re supposed to have. So I think I would certainly be confident in arguing to the industrial commission that those cashiers or, let’s say, the Instacart people who are doing the shopping for you are more likely to contract COVID-19.

Josh Van Kampen: 11:12 Now, let’s talk about paper pushers like you and me, Rob, are now who are able to work remotely, we certainly can’t say that we’re more likely to contract at COVID-19. And so I think you and I, for example, wouldn’t have a leg to stand on. But cashiers, first responders, healthcare workers, delivery drivers, folks like that I think would. Problem is that’s only the first part of the test. The second part of the test is to show that the employment caused or substantially contributed to the condition. So, in other words, we need to prove that your job… You contracted COVID-19 at work or as a result of your job. And how do you do that? Because with COVID-19, there’s an incubation period of, the estimate I think is, most recently, two days to 14 days.

Josh Van Kampen: 12:06 If that’s the case, how are you able to go to the industrial commission and pinpoint that you contracted COVID-19 in the performance of your job duties, because there’ll be an intervening period in between where you could have gotten it elsewhere. And so, there it becomes really important for our listeners to be able to say that you were following, let’s say, your lock-in-place order per your state. And so, if you weren’t going to work, you were back home, that you abided the six feet distance restriction that’s required. If you can show that your COVID-19 hygiene, if you will, was exemplary, and so that the only interactions that you were having with members of the public was at work, then I think you’re more likely to be able to show that connection, if you are able to show that you were not around people where you might’ve contracted it other than at work.

Josh Van Kampen: 13:07 Now, what makes me concerned for listeners though is, let’s say you minded your Ps and Qs, and you did everything right, and your only exposure to contract COVID-19 was at work at the supermarket, that’s only as good as the other people that you live with. So, if you’re interacting with your little brother who also had a job, and he went on spring break and was a knucklehead, you could have contracted it from your knucklehead little brother, then that’s going to create a problem for trying to apply for workers’ compensation benefits.

Robert Ingalls: 13:46 Yeah, I could see that getting really stressful if there was some litigation there. Just trying to prove who went where and where it came from, I could see that being very difficult.

Josh Van Kampen: 13:54 All right. And one thing we already know about workers’ compensation carriers, they’re being counters. And so if they can find some wiggle room to not have to pay benefits, then you know that they’re going to do that. Now fortunately, not in North Carolina, but it’s been reported that in other States, there have been some amendments to workers’ compensation laws to provide benefits for certain categories of folks. So, according to recent news reports, Washington and Kentucky have amended their workers’ compensation laws to allow for healthcare workers and first responders to be covered by those laws. Period.

Josh Van Kampen: 14:38 And I certainly would urge our listeners in North Carolina to contact the governor’s office, Governor Cooper, and also your senators and your representatives in the state house or general assembly to urge them to amend the workers’ compensation law to apply to healthcare workers and first responders at a minimum. Now, to me, I think we also want to cover our delivery drivers and our cashiers and supermarket workers. They’re really brave, and valuable, and also, they don’t get paid very well. And the notion that they’re going to be out there, left hanging, not eligible for workers’ compensation benefits, is just offensive to me. And so I think we all have to step up. You know Rob, just like you did on the last one, if we could leave a link for folks to follow to contact their state and local representatives, that’d be great.

Robert Ingalls: 15:36 Yeah, absolutely. Yeah. Their job seemed, at this moment, to be very high risk with lower reward?

Josh Van Kampen: 15:43 Yeah. And I started slipping… I just started slipping tips to the cashiers and the baggers. I know they are not supposed to accept it, but I thought just – they remind me of my own kids. A lot of them are 16, 17, 18, 19 years old. And then you got the single moms who are working three jobs, and one of which is being a cashier. They don’t have any choice but to go to work to support their families. So gosh, we got to protect them too.

Robert Ingalls: 16:14 Absolutely. So outside of worker’s compensation, are there any other options to help employees?

Josh Van Kampen: 16:21 Yeah, so there are… Remember, we talked about that second bucket which has to do with disability policies. So some employers, especially the larger employers, they pay to have, what are called, short-term disability policies for their workers. The more generous employers don’t require the employee to contribute to those premiums. Some other employers will require employees to contribute. And then, there are still other employers who won’t pay anything for these short-term disability policies, but some of the listeners may be given an opportunity to pay for that entirely out of their own pocket. But assuming that you’re covered by a short-term disability policy, there’s probably a pretty good chance that you would be eligible for a compensation under that policy if you contract COVID-19.

Josh Van Kampen: 17:16 And what’s nice about these short-term disability policies is most of them pay up to 80% of your pay rate, which is better than some of the federal laws that we were talking about in the last podcast. And they usually cover up to a 90 days at 80% pay, which I think should be sufficient for someone to be diagnosed and recover, get a clean bill of health from a COVID-19 diagnosis. But it’s critical for listeners to obtain copies of their disability policies. So the legal term for them, what you’re asking for, are Summary Plan Descriptions or SPD for short. You’re legally entitled to get a copy of your short-term disability plan, and it’s really in the fine print to determine whether or not you would be covered. But certainly, as a general rule, I would anticipate that folks would be covered for a COVID-19 diagnosis for a short-term disability.

Josh Van Kampen: 18:23 One other nice thing about short-term disability… Remember with workers’ compensation benefits, we were getting caught up on proving that the COVID-19 was contracted at work or work-related. Under short-term disability policies, it is irrelevant how you contracted COVID-19. Your knucklehead little brother, who went to spring break, who was covered by a short-term disability policy would still be entitled to benefits regardless, because there’s not going to be an inquiry about how COVID-19 was contracted.

Robert Ingalls: 18:57 Now, how does long-term disability policies… How do they play into this?

Josh Van Kampen: 19:02 So in general, long-term disability policies dovetail with short-term disability. So if short-term disability covers you for 90 days, usually long-term disability policies will pick up on the 91st day. Sometimes, you have gaps, and so, it may be it picks up on the 120th day versus the 90th day. But most employers that provide short-term disability also provide long-term disability policies. Now, long-term disability policies are not as generous. So as a general rule, they pay only about 60%, whereas short-term disability benefits generally pay out at 80%. That drops down to 60% on long-term disability. And then long-term disability policies are also much more likely to deny you coverage, because you’re having to prove that you are unable to work, and not only that, unable to work for a longer period of time.

Josh Van Kampen: 20:01 So, and I guess the question is, folks with COVID-19, are they likely to be the beneficiaries of long-term disability? And I think most likely not because, jeez, I sure hope that within a 90-day period that you’re fully recovered. But let’s say, God forbid, one of the listeners ended up with some severe damage to their lungs. And so, as a result of that damage, let’s say, they were a welder or something like that, and it wasn’t the COVID-19 but the scarring of the lungs as a result, that can be… I could see where long-term disability benefits might apply in that situation. Or let’s say that the person who contracted COVID-19 already had some chronic condition that was exacerbated by the COVID-19 diagnosis, in that instance, long-term disability benefits might apply.

Josh Van Kampen: 21:02 But in general, for listeners, it’s unlikely that you’ll benefit under a long-term disability policy for COVID-19. One other thought though, in terms of trying to become eligible for receiving long-term disability benefits, let’s say that originally you were diagnosed with COVID-19, you took short-term disability. But during that time you were also diagnosed with a general anxiety disorder, God forbid, you suffered a loss in your family and were battling a depression, it’s possible that those additional diagnoses after your COVID-19 diagnosis could result in you being eligible for long-term disability even though your COVID-19 condition resolved itself.

Robert Ingalls: 21:52 All right. Well, thanks for joining us today, Josh. This was very informative. And for the listener, I think it’s important to remember that we are stating the law as it is on April 1st, 2020. There’s a lot of updates taking place, and we’re going to come back here, and we’re going to keep you updated. But the laws are moving quickly, and some of this information could be stale by the time you hear it. So please never make any legal decisions without speaking to a legal professional first. Take care.

Outro: 22:19 Congratulations for taking an important initial step in turning the tables at work. But this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com, or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen law can evaluate your case. Until next time, keep your head up and your wits about you.

Families First Coronavirus Response Act – The Good, The Bad and The Ugly

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The world has been changing and shifting over the past few weeks due to the Coronavirus pandemic and employment rights job protections. With so many lives affected by the COVID-19 virus, Congress has recently passed the Families First Coronavirus Response Act (FFCRA). This law aims to address some concerns that many citizens are concerned about, particularly in terms of their employment.

In this episode of Walking Papers, attorney Josh Van Kampen of Van Kampen Law dives deep into the FFCRA to give an understanding of what rights are protected and gaps that need to addressed in the context of employment. 03:12 He shows the positive and negative aspects of this law, as well as the loopholes that are to be expected in legislation that’s passed quickly.

He talks about the various provisions included in FFCRA, including the Emergency Paid Leave and the Emergency Family and Medical Leave Expansion Act 04:26, and how a person either diagnosed with COVID-19, showing symptoms, or caring for someone who is afflicted with it, can take advantage of paid leave and other benefits. 05:32

Attorney Van Kampen also reveals a number of caps and restrictions that affect certain population groups 09:32 and what other laws you can refer to. 13:16 He takes note, however, that the existing laws prior to the FFCRA are written without the context of the Coronavirus.

You should also watch out for any developments or revisions to the new law, which will be dependent on what happens as the country deals with this pandemic.

Contact Your NC Legislators About FFCRA

Looking for more information on protecting your employment rights during COVID-19?

COVID-19 Employment Law Resources For Employees

Connect with us:

Our website: www.ncemploymentattorneys.com

Follow us on Facebook, Twitter, LinkedIn, and YouTube.

For more information on how Van Kampen Law can help you, call 704-247-3245 or contact the us online by filling out our confidential online intake form.

The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, This podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers. This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at NCemploymentattorneys.com, or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case.

Read Full Transcript

Intro: 00:00 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you, but unlike the company, you’ve not been drilled on how to wield them. You’re playing catch up. There are pitfalls to avoid and countermeasures to deploy that may save your job or puts you in the best position to negotiate a favorable settlement. Minutes matter. Your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power. Let’s get started.

Robert Ingalls: 00:46 Welcome to the Walking Papers podcast. I’m your host, Robert Ingalls, and today we’re going to be discussing the Families First Coronavirus Response Act. Now a lot has changed in the world in the three weeks since we last discussed Coronavirus on episode seven. Schools are closed, nonessential businesses are closed, companies are laying off employees, and the economic fallout is impacting everyone. Recently passed by Congress, the FFCRA takes effect today and aims to address these issues and more. I’m here with employment attorney, Josh Van Kampen to discuss the good, the bad, and the ugly of the FFCRA. Welcome, Josh.

Josh Van Kampen: 01:28 Ah, thanks. Thanks for doing this.

Robert Ingalls: 01:31 No, absolutely.

Josh Van Kampen: 01:31 [crosstalk 00:01:34.

Robert Ingalls: 01:33 It’s a little different than we usually are. We’re remote today because there’s been a Mecklenburg County and North Carolina also has a stay-at-home for all nonessential businesses, and I don’t think they’ve deemed podcasting essential businesses as far as I’ve heard.

Josh Van Kampen: 01:49 But law offices are apparently.

Robert Ingalls: 01:51 Law offices.

Josh Van Kampen: 01:53 Yeah, and everybody said we lawyers were useless, so that makes me feel pretty good.

Robert Ingalls: 01:58 Hopefully on the other side, you’ll gain some reputation back. So tell me, why are we calling this the good, the bad, and the ugly?

Josh Van Kampen: 02:05 Well, first of all, I’m sitting on my porch this morning and came up with the title and I’m embarrassed to say that I didn’t know the origin of it. So it turns out the good, the bad, and the ugly is actually one of the most iconic, they call them spaghetti westerns that I never saw, but it’s clearly in our culture and also Clint Eastwood’s in it. And in fact, this was a movie in which Clint Eastwood burst onto the scene and into the genre, and he’s somebody I idolized until he talked to an empty chair.

Josh Van Kampen: 02:43 But I put that behind us and we’re still going to use, his movie title as a clip. So why is it the good, the bad and the ugly? Well, it’s because there’s parts of it that are good, there are parts of it that are bad, and there are some ugly parts, too. And it’s important that our listeners know, what good parts of the law may apply to them. Many of our listeners are going to think that they’re covered by this law and probably not be. So we’re going to have everybody to thoroughly understand what rights they might be protected or be able to enjoy under this law and which ones they’re not. And then where the gaps are that need to be addressed moving forward.

Robert Ingalls: 03:24 Perfect, and now we are recording this on April 1st of 2020. So this is going to be information as we understand it today. So, take us through a little bit about what is going on with the Families First Coronavirus Act.

Josh Van Kampen: 03:39 Sure. Well, it got passed in a hurry and a lot of times when laws are passed in a hasty fashion, there can be some problems with it. And the other thing we know about Washington, D.C. is that there are compromises that are made and there are lobbyists that have their hands and tentacles in the drafting of these statutes and as a result, we’ve got some pretty big loopholes in a law that if you read it just as a headline, you would have been doing back flips over, and had been excited to hear about. But the Families First Coronavirus Response Act is actually a massive statute. But as far as employment laws go, there are two acts within that law that are worth discussing.

Josh Van Kampen: 04:26 So, the first is the Emergency Paid Leave Act or EPLA, is what it’s being called now, and really what we should call that is the two weeks paid leave act. So, before anybody gets real excited about how much paid leave you get under the statute, it’s two weeks, nothing to get overly excited about. And then there are restrictions basically, where that law doesn’t apply to a large segment of the workforce. But we’re going to talk about the Emergency Paid Leave Act.

Josh Van Kampen: 04:57 And then the other act within this larger statute is the Family Leave Expansion Act, and so this is an amendment to a law that probably a lot of listeners are familiar with, which is the Family Medical Leave Act. And for the first time under that statute, there’s actually some paid leave that’s provided to some segments of our population. But there’s also huge loopholes with that law as well. So, we’ll get into both of those together today.

Robert Ingalls: 05:28 Now tell me about what is good about these laws.

Josh Van Kampen: 05:32 Sure. Oh, let’s start first with EPLA. So, first of all, so it’s two weeks paid leave. The rate of pay is not minimum wage. The rate of pay is actually whatever your rate of pay is at your employer, subject to some caps. So it’s a cap of $511 per day for most people that are covered by this law and then two thirds your normal pay rate depending on why you’re taking the leave. So first of all, under what circumstances can you take leave under this law? The first is, so most listeners are going to be subject to basically, a state or local impose stay-at-home ordinance. And if that’s the case and you are unable to work because you are subject to that isolation order, you would be entitled to receive paid leave. And that is regardless of whether or not you have a COVID-19 diagnosis or not, just if you’re not in an essential business and you’re required to be at home, then you’re entitled to this two weeks of pay. So that’s the first category.

Josh Van Kampen: 06:41 The second is if you’ve been advised by your medical professional that you have COVID-19, or may, and you’ve been instructed by your medical professional to self-quarantine and you’re unable to work, then you’re entitled to two weeks paid leave for that. And the other is, let’s say you’re experiencing symptoms, but like a lot of folks, you just haven’t been able to get a doctor’s appointment or a test, then you can be entitled to this two weeks leave because as long as you’re actively seeking medical attention at that point. You can also take leave if you’re caring for someone else who has been diagnosed with COVID-19 or is quarantining pursuant to medical advice. So for example, if your son or daughter or spouse or someone like that needed help and you were taking off work, you could get two weeks paid leave for that.

Josh Van Kampen: 07:32 And then finally, a lot of listeners who are parents have kids who are no longer able to physically report to work and so they’re entitled to take two weeks leave for that as well. Now, remember we talked about, there are some instances where you get full pay for the two weeks and then in other instances you only get two thirds pay? You only get two thirds pay if you’re caring for your child at home because the school is closed. In that instance, it’s only two thirds pay or if you’re caring for another person. But in any of the earlier instances that we talked about, you’re entitled to full pay for those two weeks. So that is the good with the Emergency Paid Leave Act.

Josh Van Kampen: 08:18 And then, switching over to the Family Leave Expansion Act. On that one, the good is that you can be entitled to an additional 10 weeks at two thirds of a pay rate for those folks who are at home caring for a child who’s unable to go to school because the school is closed or the daycare is closed. So remember, we talked about this large segment of people that are protected and entitled to two weeks paid leave, well the only segment that continues beyond two weeks and that is eligible to receive two-thirds pay for the next 10 weeks, are the folks who were parents with kids that aren’t able to report to school.

Josh Van Kampen: 09:02 So we just sliced off essentially with the Family Leave Expansion Act, the sick people, and does that make any sense to you or the listeners that the people that actually have been diagnosed or are in the process of being diagnosed would suddenly not need more than two weeks of paid leave, but that was the compromise that was worked out apparently in Washington, D.C.

Robert Ingalls: 09:31 Now we’ve covered the good of these laws. What are we seeing is the bad now?

Josh Van Kampen: 09:37 Yeah. Well, first of all with the Emergency Paid Leave Act, there’s a huge loophole. So, it only covers employers that have 500 or fewer employees. So, I’ve never seen anything like this before where essentially the largest employers in our country are given a free pass and don’t have to provide this two weeks paid leave. But employers with under 500 employees, are required to provide this two weeks paid leave. So, that doesn’t make much sense to me at all but a little sliver of the good for the Emergency Paid Leave Act though is that, let’s say you were only at your new job for one week, but then you end up being unable to report to work for any of the reasons we talked about, you’re still eligible, even though you had just started that job. So that part is good.

Josh Van Kampen: 10:36 But for the listeners who work for large employers, a lot of you guys are going to have, let’s say you work for Bank of America, for example. You probably already get some paid sick leave. You may not get two weeks, but you probably have some paid sick leave in your benefits bank, but let’s say you already used a week of it and so you’re down to only one week of paid leave left. We all know from just learning about COVID-19, these conditions don’t resolve in two weeks and you can’t even get a test in two weeks.

Josh Van Kampen: 11:11 So, you’re going to have people that have paid leave with their employers that would have already used some and have fewer than two weeks. But what really bothers me are, you probably don’t go to the supermarket anymore but I was going to supermarkets a month ago or three weeks ago, and I would see cashiers 18, 19, 20 years old lining up and working. So, if you work for Harris Teeter and Publix, obviously they have more than 500 employees, you’re probably a part-time worker and aren’t entitled to any paid sick time because you’re part-time. But yet you’re left without any protection in terms of being able to get this two weeks paid leave if you’re a part-time worker for a large employer for example, and you’re not eligible. So that really bothers me. I’m sure it bothers your listeners as well.

Josh Van Kampen: 12:06 And then getting back to the Family Leave Emergency Act, even for the people that are covered, so let’s say you’re out of work, you get the two weeks under the Emergency Paid Leave and now you want to get paid for the additional 10 weeks, well guess what? The same issue applies. Depends on how large or small your employer is. So, if you’re working for a company that has more than 500 employees, you’re not able to take that 10 weeks of additional paid leave because your kid is out of school because you would just work for an employer that has too many employees. It’s too big and that doesn’t make any sense to me, and it’s fundamentally unfair. Whereas, let’s say you have a neighborhood supermarket who’s just a mom and pop shop, they’ve got 300 employees, they’re going to have obligations to provide paid leave, but the Harris Teeters and Publix of the world are not. So that’s just fundamentally unfair.

Robert Ingalls: 13:10 All right, now when it comes to that large group of people that are falling between those cracks, what other options do they have?

Josh Van Kampen: 13:16 Well, and that’s where the ugly comes in. There are two laws on the books that are worth discussing, but like we talked in a previous podcast, Rob, these laws were never passed for a pandemic of this kind in mind. So, one is the Family Medical Leave Act. So, that’s not a bad law by any means, but there are restrictions with it. So, Family Medical Leave Act was passed in 1993 under the Clinton administration, well it is not paid leave. So even if you qualify for Family Medical Leave Act after you’ve had your two weeks of paid leave, if you’re covered by the FMLA, those next 10 weeks would be unpaid. So, that’s a problem. The good side, the employer would be obligated to pay your medical benefits while you’re out for those 10 additional weeks. But it’s unpaid leave and obviously, people are going to need that leave to be paid right now it wouldn’t be.

Josh Van Kampen: 14:16 The other bad part of it is, a lot of your listeners are not going to be covered by the Family Medical Leave Act because of some thresholds that are in place. So one is, it only applies to employers with 50 or more employees. So, right off the bat, if you’re working for a small business, you’re unlikely to be covered by the Family Medical Leave Act, and even if you are working for a company with more than 50 employees, you still may not be covered unless you have worked for that company for a year. So you have to have worked for that company for a solid year and you also would have been obligated to have worked at least 1250 hours within that year. So if you do the math on that, that averages to about 25 hours a week on average. So if you were only working for that company for 15 hours a week, even if you worked there for more than a year, you may not be eligible because you don’t work enough hours in the year. So, once again, there’s a huge segment of the population who are not covered by the Family Medical Leave Act and it’s not paid leave, which is a problem.

Josh Van Kampen: 15:27 Then the other law that’s on the books, that’s a really robust law if you’re covered by it, is the Americans with Disabilities Act, but you have to be quote unquote disabled under that law, and the Americans with Disabilities Act generally doesn’t apply to conditions that are temporary. There’s no law on the books addressing whether or not COVID-19 would qualify as a disability, but in general, like influenza, the flu is generally not covered by the Americans with Disabilities Act. So one thing that Congress could do and should do, like tomorrow is amend the Americans with Disabilities Act to add COVID-19 as a disability.

Josh Van Kampen: 16:12 Why would we want to do that? One is, anybody who’s covered by the ADA is entitled to a reasonable accommodation, and a reasonable accommodation can include medical leave more than two weeks long. And so under the ADA, if let’s say you needed to be out a full month with a COVID-19 diagnosis, if you were covered by the ADA, you would be entitled to take that leave and also be entitled to be restored to your position. And right now, most employers are going to be pretty aggressive in the court system to try to argue that the ADA doesn’t apply to them, for folks that have COVID-19. So we could literally, Congress could act, write two sentences, add it to the Americans with Disabilities Law and we could fill this gap and protect a whole lot more folks.

Robert Ingalls: 17:02 Do you think that’s something that Congress might be willing to do, depending on how long this goes on

Josh Van Kampen: 17:06 Yeah, I mean, gosh it just seems like there’s so many fires to put out, and I’m sure there are just only so much bandwidth to deal with problems. But one of the reasons why we do these podcasts is to raise awareness about where the gaps are in enforcement. So for everybody who’s stuck at home with a lot of time on your hands, you could email or call your Senator or representative and urge them to amend the Americans with Disabilities Act to add COVID-19 as a disability or same thing while you’re at it, why not ask your Congressman or Senator to further amend the Family Medical Leave Act to provide the 10 weeks paid leave for folks that have COVID-19 or are recovering from COVID-19.

Robert Ingalls: 17:57 Perfect, and we’ll go ahead and link in the blog and in the show notes a resource for finding out who your Congressman or Senator is if you wanted to contact them.

Josh Van Kampen: 18:06 That’d be great, yeah.

Robert Ingalls: 18:08 All right, Josh, well, I appreciate you taking some time with us today and for the listeners, I think it’s important to remember that we are recording this during the middle of a crisis on April 1, 2020. These laws could be changing quickly in real time, and we’re going to do our best to come back here and keep you updated, but there is a chance that these laws, as we’re stating them today can become stale. So remember, never make any decisions before speaking with an attorney. All right, take care.

Outro: 18:36 Congratulations for taking an important initial step in turning the tables at work. But this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com or better yet, call (704) 247-3245 for a free initial intake interview, so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.

COVID-19 Overwhelms North Carolina’s Ill-equipped Employment Law Protections

COVID-19 has overwhelmed the federal and spotty North Carolina employment law protection scheme. The NC wrongful discharge tort is built to adapt immediately to new pronouncements of “public policy,” and an executive order should do the trick. What can Gov. Roy Cooper achieve with the stroke of a pen to bring needed relief to our suffering workforce?

The Price is Right – What Can You Recover If You Win Your Wrongful Termination Case?

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Getting fired from your job is one of the biggest fears that any employee has at the back of their minds. When your personal stability is shattered because a major source of income is taken away, it becomes a stressful and at times, a traumatic experience. But what if you were terminated unjustly or the grounds for removing employment are unfounded? Can you sue your employer for damages caused by your termination?

In this episode of Walking Papers, attorney Josh Van Kampen of Van Kampen Law discusses wrongful termination damages and what lawyers typically deal with in cases like this. There are different types of damages that you can seek to recover, and Attorney Van Kampen refers to these as buckets. 02:51

There’s the back pay and back fringe benefits 03:56, the discretionary front pay and fringe benefits 08:11, reputational damages 09:40 and consequential damages 10:57. He also talks about other buckets that my have damage caps on them, like emotional distress 12:47 and liquidated punitive damages 19:23. Additionally, you can also have your previous employer pay for any attorney’s fees that you will incur during the entire proceeding. 22:09

It’s important that the legal time you hire not only figure out the actual worth your wrongful termination case is, but to watch out for any pitfalls the company may lead you into, especially during questioning. 16:36

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Our website:  https://www.ncemploymentattorneys.com (http://www.7mileadvisors.com/) .

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For more information on how Van Kampen Law can help you, call 704-247-3245 or contact the us online by filling out our confidential online intake form (https://ncemploymentattorneys.cliogrow.com/intake/ce323e426701c6ef1e910e5e2f123faf) .

The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, This podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers. This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at NCemploymentattorneys.com, or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case.

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Intro: 00:01 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you, but unlike the company, you’ve not been drilled on how to wield them. You’re playing catch up. There are pitfalls to avoid and countermeasures to deploy that may save your job or put you in the best position to negotiate a favorable settlement. Minutes matter. Your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power. Let’s get started.

Robert Ingalls: 00:45 Welcome to episode 9 of the Walking Papers podcast. I am Robert Ingalls and I will be your host. The title of this episode is The Price is Right. What can you recover if you win your wrongful termination case? Tell us about that title, Josh.

Josh Van Kampen: 01:04 I remember being at pop pop’s house, who’s my grandpa and, I hope that I’m right, I’m pretty sure it was 11 o’clock in the morning. Price is Right, or maybe noon, every day. And maybe the younger listeners may not even know what Price is Right is, but it was a game where you were basically guessing to the dollar, the price of a car or a washer or dryer, things like that. And in a wrongful termination case, part of what a lawyer is going to do for you is figure out what your case is worth. And we’re going to actually help you to do that in this podcast by explaining what sort of factors lawyers consider when they’re figuring out the price of a wrongful termination case.

Robert Ingalls: 01:48 Got you. So let’s say I’m thinking of filing a wrongful termination case, but I really don’t know whether it’s worth it. What kind of questions should I be asking myself?

Josh Van Kampen: 01:58 Well, when we value a case, we do so on two axis. So the first is, what is the likelihood that we’re going to win in our case, and I think we’ll probably do a separate podcast on that one, Rob, to try to predict likelihood of success and with the factors we consider on whether or not we’re going to win. But the other axis, which is a lot easier to analyze is, assuming you win, what are you likely to receive? What sort of damages are you likely to receive from a jury? And on that one it’s math, and buckets. And so there are different buckets that a jury or a judge can put money in. And so we’re going to go over those various buckets and describe them and also some ranges of dollars that can be put in those buckets.

Robert Ingalls: 02:47 Gotcha. Tell me about some of those buckets.

Josh Van Kampen: 02:51 All right. So lucky seven, we’re going to rattle them off altogether, just the roadmap. First we’re going to talk about back pay and back fringe benefits. That’s bucket one. Bucket two is front pay and benefits, which is basically future lost wages. The third is reputational damage. The fourth being what are called consequential damages. Fifth, pain and suffering or emotional distress. Sixth, liquidated damages or punitive damages and then the final bucket, my favorite bucket, attorney’s fees; attorney’s fees and costs. Unfortunately in the employment claims, that are broad, the employer is actually ordered to pay attorney’s fees and costs for the employee and so we’ll speak about how that works as well.

Robert Ingalls: 03:44 So let’s go ahead and break some of those down. Let’s start with back pay and fringe benefits.

Josh Van Kampen: 03:48 With back-pay, just emphasize back. This is backward looking. So at some point, if the case doesn’t settle you’re going to have a jury trial. And that jury trial, a typical lifespan of a case these days is between 18 months and 24 months. So let’s assume two years from now, you won your jury verdict, what could you get in back pay? Well, that would be any money that you would have earned had you not been terminated from your employer. So that’s easy to do because we’d have access to your W2 statements and also your paychecks to know what you would have earned. And so the meter just goes, no different than if you’re in a taxi cab, you get in and you’re driving around and you see the meter run. Well, the meter is running on your lost wages and benefits from the day after that your terminated. So we’ve got to calculate and figure out what you would have earned over those two years.

Josh Van Kampen: 04:43 Now the bad news is that the employer actually gets credit for any money that you earn after you’ve been terminated. So understand that you can’t be terminated and sit on your couch, put your feet up and binge-watch on Walking Dead episodes. You have a duty to mitigate your damages, which means you have a duty to try to find comparable employment. And if you don’t do that you can actually have your damages cut off because you’re expected to conduct a “reasonably diligent search.” But understand, once you get that job, in terms of what you’re going to recover in your back pay award, it’s going to be deducted dollar for dollar from anything that you earn from your new employer.

Josh Van Kampen: 05:31 So sometimes it’s a catch 22 for an employee because on the one hand, for your legal claim it’s worth more if you are out of work a longer period of time, or if you take a job that is making substantially less than your old job, the value of your legal claim actually goes down because the employer is getting a credit, dollar for dollar, for those earnings. But the flip side of it too is, if you don’t conduct your reasonably diligent search, that can also cut off your damages. So what I always tell my clients is look, you live in the real world, not the legal world. So, go out there, try to get the best job you can, as soon as you can. Don’t worry about the value of a legal claim, but just understand that the more successful you are in that job search, the lower your back pay award is going to be. So that’s back pay.

Josh Van Kampen: 06:29 Now let’s talk about back fringe benefits. So fringe benefits are the medical insurance, vision, dental, 401K match, pension, health savings, account eligibility. All the sort of bells and whistles that you love to have working for a company. If you are out of work and let’s say you had to elect COBRA insurance, for example, and you bought COBRA for six months, well you can recover the cost of that COBRA premium for six months. Or let’s say you couldn’t afford COBRA and so you were now incurring out-of-pocket medical expenses that would have been covered if you would have never been fired, we can recover those out-of-pocket medical expenses as well. And same thing goes with a 401k match, that’s easy to do. So if before you were the beneficiary of a 3% 401K match from the company. You’re fired. Your new employer doesn’t have a 401K match. We’re going to want to recover that lost 3% 401k match.

Josh Van Kampen: 07:33 Now what’s nice is that you also get interest. So add up whatever those figures are, at least in North Carolina, you can recover 8% interest on those amounts, which is a nice feature, especially since at least right, as of today the markets are cratering as we’re filming this podcast here, in March 2020.

Robert Ingalls: 07:54 And at least if they do drag it out, you’re recovering something additional for that.

Josh Van Kampen: 08:01 Right. And then you say thank you very much.

Robert Ingalls: 08:04 That’s probably not what you’re feeling, but I’m sure-

Josh Van Kampen: 08:06 Right.

Robert Ingalls: 08:07 So onto the second one, future pay and fringe benefits.

Josh Van Kampen: 08:11 Right. So understand with back pay and benefits, that’s automatic. So if you win, you’re getting your back pay, you’re getting your back fringe benefits. Front pay or future lost wages, that’s discretionary. The judge in your case, not the jury, is going to decide whether or not you should receive any future lost wages. And so on the top end, the most that obviously that you could seek to recover would be whatever you would have earned through age 66, which is the standard retirement age.

Robert Ingalls: 08:44 So you can’t just say, I’m nimble, I was going to work to 70?

Josh Van Kampen: 08:46 I have clients that argue that all the time. But so 66 is the norm but let’s be realistic. If you got terminated and you were 40, is it fair for us to expect the company to pay you 26 years of front pay? No, of course not. Because you’re not going to be unemployed for 26 years. So in negotiations anyway, a general rule of thumb for me is somewhere around five years. But remember we were talking about mitigation earnings. So even when you’re calculating your front pay, we’re still going to be deducting what we’re projecting to be your mitigation earnings in the future. So let’s say in the hypothetical, you make 50 grand less per year in your new job, well we’re going to want to get 50 grand times five years of future losses.

Robert Ingalls: 09:35 All right. That brings us to reputational damage.

Josh Van Kampen: 09:40 On this one, whenever you’re terminated, especially if you’re terminated for cause, and let’s say that’s a pretext for discrimination, that termination for cause is it’ll damage your reputation. So it’s always frustrating for me where I have a client who has meticulously worked their way up a career ladder over, say 20 years of employment and then all of a sudden they inherit a new manager who wrongfully terminates them or has a bias against them. You get knocked off your ladder, it’s really hard to get back on when you have a termination on your record. And so you can also recover reputational damages separate and apart from your future lost wages. Question is, how do you quantify that? Sometimes we’ll hire a forensic accountant or a vocational expert to testify about that issue but ultimately it’s like pain and suffering in the sense that you can put a number on it, but it isn’t necessarily an exact science.

Robert Ingalls: 10:46 All right, well that takes us to consequential damages.

Josh Van Kampen: 10:49 Yeah and that’s the one that, why couldn’t they give it a better name? You can’t figure out what the heck consequential damages mean.

Robert Ingalls: 10:56 Not from the context.

Josh Van Kampen: 10:57 Right, exactly. So let me translate that. It’s basically miscellaneous damages that you’ve suffered as a consequence of your job loss. It’s not uncommon for folks to have to cash out their 401K plans to make ends meet after a termination. You incur a penalty for doing that so let’s assume it was a $20,000 penalty, you can recover that $20,000 back from the employer if you win. Let’s say you had to take out a home equity loan in order to keep your house, and that cost you 20 grand in interest, as a consequence of the termination, we can recover that interest as well. And then I’ve had clients who had to sell family heirlooms or prized possessions just to make ends meet and to make such sales under duress. So if it was calculable that you got 20% less on an item because you needed to sell it in a hurry, we can seek to recover that.

Josh Van Kampen: 11:58 Also within consequential damages are relocation expenses. So if you’ve got to move, pack up, you had to hire a mover, you had to sell your house, hire a real estate agent, you had to pay the real estate commission. Those are all damages you suffered as a consequence of a termination and we can seek to recover those as well. Now importantly on back pay and front pay and fringe benefits and consequential damages, there are no damages caps on those. We’re about to talk about some buckets in which there are caps on how much a jury or a judge can award. There are no caps on those first three buckets we’re talking about.

Robert Ingalls: 12:42 All right, so then that brings us to pain and suffering emotional distress.

Josh Van Kampen: 12:47 Yeah. So this one is hard to talk about. Well first of all we were just talking earlier about math and formulas. Well with pain and suffering or emotional distress, there is no formula for calculating that. And so even when we’re in trial, the lawyers even struggle to figure out, well what should we ask the jury to award for pain and suffering or emotional distress? And to some extent it’s really just going with your gut. But there are certainly different factors that we consider in valuing what sort of emotional distress or pain and suffering we’re going to ask for.

Josh Van Kampen: 13:26 The most important one for me is, is there a medical basis? So for listeners who have been wrongfully terminated, you know how you’re feeling as you’re listening to this. You can’t sleep. You’re racked with anxiety. You used to play volleyball all the time, and now you’re not playing volleyball. You’re not going to the movies. You look in the mirror and you know that you’re different, but you haven’t gone and talked to a doctor or a therapist. All you’re doing is playing right into the employer’s hands by not doing that because guess what they’re going to do? They’re going to argue that you were not hurt. You were not traumatized by the termination because you never talked to a doctor about it. You never spoke to a therapist.

Josh Van Kampen: 14:12 So please, if you know that that termination has been a traumatic event for you, and for most people it really is, please go talk to your primary care physician about how you’re feeling and if your primary thinks that it’s appropriate for you to talk to a therapist, go talk to a therapist. And what’s more, be a good patient. So if you start in therapy, stay in therapy. If your doctor prescribes you an antidepressant or an anti-anxiety medication, and obviously if it’s not working or you had a bad reaction, you should stop. But be a good patient and follow your doctor’s advice in taking your medication because the bean counters on the other side of a table at a mediation that are representing the company are going to be assigning a higher value to your pain and suffering and emotional distress if there’s a basis for it.

Josh Van Kampen: 15:08 Now another thing to consider though too is I’ll readily admit to the listeners, hey I’ve been to a counselor before. That doesn’t mean that just because I have a preexisting condition or I’ve seen a counselor before in my life doesn’t mean I can’t recover for pain and suffering and emotional distress as a result of the termination, because the judge and the jury are going to basically figure out what was from what. So let’s say that before you had a depression diagnosis and you were taking five milligrams of Welbutrin. You got fired, you went back to the doctor, and now your dosage has been upped to another 10 milligrams, for example.

Josh Van Kampen: 15:51 Well that’s an exacerbation in a preexisting depression condition and so we can go to a judge and jury and say, well see, it got worse. And so it’s appropriate for there to be some compensation for that worsening. Same thing goes for counseling. We don’t go through life in this world unscathed. And so it’s not uncommon for people to have counseling for different sorts of traumas that happened before. Don’t let that stop you because if your therapist or your doctor is able to carve that out and connect the dots to say that the termination has messed you up further then you can be compensated for that.

Robert Ingalls: 16:30 Now are there any pitfalls to watch out for that the employer may try to tactically deploy?

Josh Van Kampen: 16:36 Yeah. One trap is, understand you’re not able to recover emotional distress damages because you’re stressed out about you can’t pay your bills. So everybody that loses their job is stressed about making ends meet. The stress about making ends meet is not compensable. The employer’s not responsible for your stress about not paying bills. So if you’re in a deposition and the company attorney is asking you questions about your stress level or your anxiety, he or she’s probably going to try to lead you down this, oh, it was about… I understand the financial losses and that must have been very stressful, was that mostly what you were worried about? No. No, it was because you hurt my heart when you wrongfully terminated me.

Robert Ingalls: 17:29 Right. Trying to lead you to the swamp.

Josh Van Kampen: 17:32 It wasn’t because I was worried about my credit card bill. But they absolutely… That’s a really good way to put it, leading to the slaughter. And the other thing is the company attorney is going to try to get you to put more emphasis on the other traumas in your life so that he can say those were the main factors in why you had an increase in your dosage, versus the termination itself.

Robert Ingalls: 17:56 Now we started this out discussing how there were no caps on the last ones we talked about, but what is the cap on the pain and suffering and emotional distress?

Josh Van Kampen: 18:07 So does it make any sense to you that Congress would pass caps back in the 90s and then not update those caps?

Robert Ingalls: 18:18 That sounds about right to me.

Josh Van Kampen: 18:19 For inflation? So there are caps that are literally still in place since the Clinton administration, and so they’re really low. So for most employers, the cap under title seven of the Civil Rights Act, or the Americans with Disabilities Act is $300,000. But depending on how small the employer is, if it’s under 50 employees the cap is actually $50,000, for emotional distress or pain and suffering. Now, this is why you need a good lawyer.

Robert Ingalls: 18:51 I thought you were about to come with workarounds.

Josh Van Kampen: 18:52 Sure. There are workarounds to get out from under these stupid caps. In North Carolina, we almost always bring a companion claim to our federal claim. So you’ve got a federal cap on emotional distress, but if you see for wrongful discharge under North Carolina common law, you don’t have a cap on emotional distress damages. So we always have a counterpart wrongful termination claim under North Carolina law.

Robert Ingalls: 19:19 All right. So then tell us about liquidated punitive damages.

Josh Van Kampen: 19:23 These are basically damages where the purpose of it is to punish the employer for doing a bad thing and also deterring this employer or other employers from acting in a similar fashion. So when you’re valuing a claim, we usually don’t rely on or put a lot of money in these liquidated damages or punitive damages buckets because it’s a pretty high bar to be able to recover those. The legal term for doing so is, basically we have to show maliciousness or willful and wanton behavior. So that doesn’t tell our listeners anything.

Josh Van Kampen: 20:05 Let me translate that to say where it is so obvious that the employer doesn’t give a care about what employment obligations there are. They’re going to do whatever the hell they want and deal with the consequences later. That’s malicious. That’s reckless. And that sort of arrogance, brazenness is what you need. Most employers these days, although in the era of the Trump administration, we’re seeing more and more of this sort of cowboy behavior. But in general, it’s the exception to run into that sort of behavior but when you do, it’s actually really good for your case.

Josh Van Kampen: 20:42 So if it’s an age discrimination case, you can recover liquidated damages. Liquidated damages are double damages, so when you see liquidated, think double. And that is double whatever your back pay award would have been; very nice feature to the Age Discrimination Act. And then under the other federal employment laws, you can recover punitive damages on those… Remember we talked before about those crappy old caps? They’re actually in place and they pertain both to punitive damages and pain and suffering combined. So can you imagine, no matter how brazen the conduct or how traumatic the injury that there would be a cap of $300,000, for both?

Robert Ingalls: 21:29 That certainly works well for the employer.

Josh Van Kampen: 21:31 Right. Good thing you have a savvy lawyer who knows workarounds to get out from under those stupid old caps. But even under North Carolina, sorry to say there’s a cap on punitive damages but not as bad. So under North Carolina law you can get three times your lost wages, three times your pain and suffering. So if your pain and suffering and lost wages is a million bucks, well you can get 3 million bucks in punitive damages in North Carolina. So that’s nice.

Robert Ingalls: 22:05 All right. And that brings us to your favorite one, attorney’s fees and costs.

Josh Van Kampen: 22:09 Attorney’s fees and costs. Anytime we’re at a mediation, I’m sitting across the table from a business owner, the company lawyer, I say, “Understand that you’re paying for my time as I’m sitting here today being a pain in your ass, and you’re going to pay for every minute of my time, in all likelihood all the way through a trial, if we win. And sometimes judges will reduce attorney fee awards if you’re not very successful or let’s say I wasn’t efficient with my time or that sort of thing and there can be circumstances where it’s appropriate to reduce an attorney fee award. But for sure the general rule is that, where you’re suing for federal employment discrimination or wrongful termination, the company is going to be ordered to pay the attorney fee and cost.

Josh Van Kampen: 23:00 And we represent a lot of executives but we also represent a lot of factory workers too, or people in the service industry. And it’s not uncommon to have a case where maybe the lost wages, back pay and front pay was $200,000 but our attorney fee petition was $400,000. And so when we’re negotiating with a company, for example at a mediation, we’re pointing out, well look, you’re undervaluing the claim if all you’re thinking about is the lost wages and benefits, because the attorney fee award is going to be double that. So we’re always reminding employers about the fact that these are called fee shifting provisions, where the fees are shifted to the defendant if they lose.

Robert Ingalls: 23:44 All right, well before we go, tell me about the Van Kampen Law approach to negotiations. If I come in and I have a case like this, take me through what this is going to look like together.

Josh Van Kampen: 23:56 Well it could be a really short road or it could be a really long road, but our clients are always wanting this road to be as short as possible. And so our playbook is emphasized on exerting a maximum amount of pressure and intensity and aggressiveness as fast as possible, so that we can get the employer to buckle, basically. But it starts out with a polite knock. There are law firms in town that will write a mean nasty letter and threatening to file the lawsuit in seven days if this money isn’t paid, and a whole lot of bluster. Like I said before, fire and brimstone. That is not an effective way to get a case settled, initially.

Josh Van Kampen: 24:43 And so we arrive with a polite knock at the door in the form of a very short letter of representation. And where we’re going to be concentrating our efforts in getting a case settled is not in a letter writing campaign, but in that first contact with the company attorney or representative. So we view that first contact with that company attorney as almost as important as an opening statement in a jury trial. And so we’ll spend hours upon hours upon hours actually orchestrating our script of how we’re going to present our client’s case in that first call because that’s the smart thing to do. We’re going to work really hard, really fast, really early to try to get a case settled.

Josh Van Kampen: 25:30 But you have to remember too though, be prepared if that doesn’t work. And my personal batting average in cases, say coming out of a severance negotiation context, is about 600 or 60% success rate for an early settlement, I’d say. But after that, you’ve got to have a playbook of escalation points. And so I don’t want to give away all my secrets of escalation points, but what we’re trying to get employers in town to understand, and I think most of them do by now, is that the longer you fight us in negotiations, the more expensive it’s going to be. And employer, you’re going to get your best deal early than if you make our client wait and fight. And so that’s our approach.

Robert Ingalls: 26:18 Well, is there any last words?

Josh Van Kampen: 26:20 No, I just appreciate everybody who’s listening and I’m hoping that you’ve cracked up at least a few times in some of these podcasts.

Robert Ingalls: 26:28 All right, well thanks Josh.

Josh Van Kampen: 26:29 All right, thanks.

Speaker 1: 26:32 Congratulations for taking an important initial step in turning the tables at work but this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at NCemploymentattorneys.com or better yet, call (704) 247-3245 for a free initial intake interview, so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.

These are Not the Droids (I Mean Severance Packages) You’re Looking For, Jedi Mind Tricks for Enhancing Severance Offers

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Getting laid off is probably one of the toughest things to happen to you in your career. Whether your employment ended because of company closure or because of redundancy issues, there can be something good that can come out it – severance packages. Although the idea of a severance seems dark and gloomy, it can still work out to be the best solution not just for your employer, but for you, the affected employee as well.

In this episode of Walking Papers, attorney Josh Van Kampen of Van Kampen Law dives deep into severance packages. He discusses the usual inclusions and the different laws that cover it, such as the Employment Retirement Income Security Act (ERISA). 02:19

Attorney Van Kampen also goes into detail about the different problems that you can encounter in a severance offer, including the cut-off period 08:08 and the non-disparagement agreement 09:28. He also gives information on what certain provisions can be beneficial to you as the employee and what you can negotiate to get a better deal. 12:05

It’s important that once you are handed a severance notice, that you contact an employment lawyer 20:09 so they can go over the offer being given to you. You should also seek the services of someone who’s going to gather all data that’s needed, including cooperating with the company attorney too. 21:15 This is to ensure that you’re getting the most value out of an unfortunate situation.

The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, This podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers. This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at NCemploymentattorneys.com, or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case.

For more information on how Van Kampen Law can help you, call 704-247-3245 or contact the us online by filling out our confidential online intake form.

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Intro: 00:01 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you, but, unlike the company, you’ve not been drilled on how to wield them. You’re playing catch-up. There are pitfalls to avoid and countermeasures to deploy that may save your job or put you in the best position to negotiate a favorable settlement. Minutes matter. Your words and actions matter even more.

Intro: 00:33 The Walking Papers Podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power. Let’s get started.

Robert Ingalls: 00:45 I’m Robert Ingalls and I am back today with attorney Josh Van Kampen to discuss severance packages. Welcome Josh.

Josh Van Kampen: 00:53 Hi. How’s it going?

Robert Ingalls: 00:54 I am lovely. Thank you. Josh, what is a severance package?

Josh Van Kampen: 01:00 It’s kind of a dark term, isn’t it? Severance. Well, it means you’ve been severed from your job. Severance packages aren’t all bad if they’re good packages. Generally severance packages include monetary payments, usually some period of weeks or months of pay. Then also continuation of health, medical, dental, the fringe benefits that you would normally receive if you were still employed.

Josh Van Kampen: 01:31 Then severance packages come with a huge string attached, which is your waiver of your legal claims in receipt for that money. Then the severance packages are drafted by evil and management-side employment attorneys who have slanted them so heavily toward their employer’s interest. They can be pretty distasteful documents, pride swallowing documents sometimes. We’re going to, in this podcast, be talking about things that we want to negotiate out of severance agreements, things we want to negotiate into severance agreements, and then obviously the elephant in the room is to talk about increasing severance offers and how to go about enhancing your severance package.

Robert Ingalls: 02:16 Now, are there any particular laws that govern severance packages?

Josh Van Kampen: 02:19 Yes. There’s a law called ERISA, and only masochistic attorneys want to specialize in ERISA, because it’s very obscure and has a lot of obscure tax implications attached to it. Most publicly traded companies or sophisticated privately held companies often have what are called severance plans. As employees, you’re actually entitled to request a copy of your summary plan description, or SPD for short.

Josh Van Kampen: 02:50 This document will define what the standard severance package is. Oftentimes there are different gradations of severance pay depending on what category you fall in within a summary plan description. For example, C suite executives, corporate officers often have their own severance plan. Those are the richest severance plans that you’re going to see. Then different gradations of professional employees may have a different formula that they’re paid under. Then finally there are ERISA plans oftentimes for hourly employees.

Josh Van Kampen: 03:27 Listeners need to understand that these are the standard plans, and you actually are entitled to receive whatever the standard package is, if you fall within whatever criteria is set forth in the summary plan description.

Robert Ingalls: 03:41 Now, if they come to me with this standard package, is there any wiggle room there? Is that the end of it, or is there negotiation room?

Josh Van Kampen: 03:51 Don’t buy it when your employer says, “We can’t possibly deviate from our summary plan description.” I’m telling you that employers do that all the time. The reason why they do that is because the value of the waiver and release that the employer is requiring, remember the string attached that we talked about earlier, depending on what your legal claims are, it may be worth more to that employer to get you to sign that waiver and release than if you were just a run of the mill person who was displaced without any legal claims.

Robert Ingalls: 04:26 Now, if this is a smaller company, how does that process differ?

Josh Van Kampen: 04:30 Most smaller companies don’t have formal severance plans, and so they would take more of an ad hoc approach. Sometimes that’s helpful, because it actually gets out from under this argument where they’re saying, “Well, we can’t deviate from our past practice,” because there isn’t any governing document. The other thing is these small businesses, even though there’s no past precedent they need to follow under their plan, they still can’t discriminate against you.

Josh Van Kampen: 04:59 Let’s say that the white executives who were displaced from a small business always got six months severance packages, but then an African American executive gets displaced and they offer him three months. Even though there’s no severance plan, per se, under this ERISA statute like we talked about, that small or medium size business still can’t discriminate against somebody because of their race or their sex or their religion, or that sort of thing, in the amount that they pay in severance.

Robert Ingalls: 05:28 Got you. Now, let’s talk time frames to sign severance agreements. Why do some severance plans allow for, say, 21 days to consider, and then others may have shorter time frames?

Josh Van Kampen: 05:40 I know everybody is always wondering, “Where does this 21 day period come from?” It comes from a statute called the Older Worker Benefit Protection Act. I’m a little offended by this statute, because it assumes that people over 40 need more time.

Robert Ingalls: 05:56 Got to really think about that.

Josh Van Kampen: 05:57 They really need to think about it, because they’re infirm. The law requires that if you’re over 40 that you be given 21 days, calendar days to consider a severance offer. Now, that 21 days can actually expand to 45 days if you’ve been displaced as part of a group layoff. In which case you get a full 45 calendar days. Then the other requirement that’s nice from the Older Worker Benefit Protection Act is if you’re displaced as a group layoff, you’re entitled to know the ages and number of people in your job classifications so that you can compare who was retained and who was displaced. That’s a really nice feature.

Josh Van Kampen: 06:43 Then finally that statute also allows you to revoke. Let’s say you signed within your 21 days. You realized you were foolish for doing so. You can actually revoke if you provide a written notification that you want to revoke within five business days of your signing.

Robert Ingalls: 07:02 Now, what happens if the employer doesn’t give you the required time?

Josh Van Kampen: 07:05 You get to keep your money, the money that they paid you and you can still sue them for age discrimination.

Robert Ingalls: 07:12 That sounds like the win-win.

Josh Van Kampen: 07:13 It’s a win-win. In a way you feel a little bad. You’re like, “Well, jeez. I did accept the severance. I signed a piece of paper that I wouldn’t sue.” On a technicality, that waiver as to the age discrimination wasn’t enforceable, you can then sue. Now, the employer if you win in trial, the employer’s going to take as a credit the severance that was paid to you in the first place, but you can still bring suit. The bad news is the waiver that you signed as to other kinds of discrimination like race discrimination or sex discrimination, that waiver that you signed is still effective for those other claims, but your age discrimination claim survives.

Robert Ingalls: 07:56 Got you. Now, I know that frequently severance agreements tend to be uniform, but do you ever come across provisions in any of the severance agreements you’ve seen that give you pause or would make you say, “No. We’re definitely not signing this”?

Josh Van Kampen: 08:08 Yeah. We encounter a lot of these provisions in almost every severance agreement. Really, can you blame the employer? They’re thinking, “Well, if we can get away with these draconian measures or what would normally be poison pills in agreements, let’s get them.” They try. A couple that we want to be really wary of, the first of which is a cutoff for severance. In a normal severance agreement, you get your severance regardless of whether you get a new job within the six month period they were paying you, for example.

Josh Van Kampen: 08:43 Increasingly I’m seeing employers insert provisions that if you get a job in a shorter increment of time, say three months within that six month period, that it cuts off your severance. That’s not fair, because you obviously would have worked for that company for a long time to have earned that severance. You shouldn’t be penalized by receiving less severance because you did a good job and got a new job sooner. We routinely will go to the mat on a provision like that and have our clients refuse to sign it. That one is not standard, and so the overwhelming majority of time the employer will back off of that sort of provision.

Robert Ingalls: 09:26 Got you.

Josh Van Kampen: 09:28 Another one that rubs me the wrong way, what I call a draconian enforcement provision. You’re likely to have a non-disparagement provision in your severance agreement. You can’t say anything bad about the company. Let’s say you had a few too many drinks one night at the Wooden Robot Brewery, my favorite brewery in Charlotte. You ran your mouth and you said something bad about your boss or the company to your buddy, and it was overheard by a secretary from the company.

Josh Van Kampen: 09:57 The way that provisions are often written in these severance agreements, they could say that you breached your non-disparagement provision, and the contract may allow them to cut off your severance benefits if you disparage the company, or to sue you to recover all the money that they paid you because you breached the non-disparagement provision.

Robert Ingalls: 10:17 Now, at that point that’s the employer playing judge and jury. Let’s say this happens, that situation occurs and they cut off your severance. At that point do you have the ability to file suit over this?

Josh Van Kampen: 10:32 That’s what I get so bothered about this. It’s like the employer should not be able to determine whether or not you’ve breached and then turn off the spigot. The employer should have to go down to the courthouse and convince a judge that you breached, to turn off the spigot. Because obviously the employer has a financial incentive to turn it off. We’ll routinely push back on such a provision and say, “Well, employer, sure, you can turn off the spigot, but you got to prove there was a breach, and you got to go down to the courthouse to do it.”

Robert Ingalls: 11:04 Are there any other provisions you see that are heavily one-sided in favor of the employer?

Josh Van Kampen: 11:10 I call it robbing Peter to pay Paul. Let’s say that during the employee’s employment they never signed a non-compete agreement. All of a sudden you’re laid off. They’re going to pay you six months pay in severance, but they want you to sign a one-year non-compete. First of all, they’re not paying you your severance, so why would you agree to a year non-compete when they’re only paying you for six months? Furthermore, why would you want to on board that kind of restriction or obligation when you didn’t have it while you were a worker for the company?

Josh Van Kampen: 11:42 We routinely just mark out any new non-compete obligation, unless the company wants to pay your severance, then we say, “You got a deal.” It’s usually a pretty good bargain for a client at that point.

Robert Ingalls: 11:57 We covered provisions that the employer may try to add in there. Are there provisions that you like adding to these agreements for your clients?

Josh Van Kampen: 12:05 Yeah. One thing that makes me nervous for folks is let’s say you were lucky enough to have a six-month or eight-month severance package, and it’s paid out over eight months. That is exposure that you have that the company could be sold, could go out of business, could manufacture some BS argument that you breached your obligations and turn off the spigot, and then now you’re having to go to court to try to turn the spigot back on. The safest way to handle that is to get a lump sum payment upfront.

Josh Van Kampen: 12:35 Now, sure, you might be paying more taxes because it’s a bigger paycheck up front, but come tax time, so you get a refund because you overpaid. But most importantly you don’t have the risk that those payments could stop. That’s one example. The other thing that’s ridiculous, too, is they want to muzzle you. The employer wants to muzzle you and say, “You can’t disparage and say anything negative about your managers or the company,” but they can say whatever the heck they want to about you.

Josh Van Kampen: 13:04 We’re always saying, “Look, we can live with a non-disparagement provision but it’s got to be mutual.” Now, most companies are not going to agree to bind a corporation because they can’t police every single person. It reasonable for the listener to go to the human resources department and say, “Well, at least let me identify three or four people.” Because you can certainly control what three or four people are going to say during their employment. Oftentimes, if you limit it to a finite number of folks, then the employer will agree to it.

Josh Van Kampen: 13:39 Their fallback, most employers try to get it away with saying, “Well, we’ll agree to instruct these individuals not to disparage you.” But, guess what, that instruction is meaningless. You can’t sue them because they disparaged you if the employer’s only obligation was an instruction. You want to go to the mat and have an actual agreement not to disparage, not an instruction.

Robert Ingalls: 14:01 Do you put anything in there about references? Because I know that’s one that comes up a lot. People are worried that when they leave this job, the next thing they’re doing is job hunting, and they’re concerned about what that reference is going to look like. Does that get included in any of the agreements?

Josh Van Kampen: 14:15 99% of employers any more have a neutral employment reference policy. Guess what, you can’t sue them for breaching a policy after you’ve been fired. It’s not enforceable. You want to have the neutral employment reference provision in the contract, because then you can sue for a breach of contract. You can’t sue for a breach of a policy. You definitely want to fight to have a neutral employment reference provision in the agreement.

Josh Van Kampen: 14:42 Also though, you want to make sure, let’s say you did hire an attorney and the attorney asserted potential legal claims against the employer. You don’t want the employer to be able to run their mouth about your having hired a lawyer or threatened legal claims. In that instance, we’re going to want to insert language that says that if they are contacted for a reference by a prospective employer, that they’re not allowed to reference that you hired an attorney or threatened legal claims.

Robert Ingalls: 15:11 Sure. Do you address unemployment in any of these severance agreements, like if an employee decides they want to apply for unemployment? Has this come up?

Josh Van Kampen: 15:20 You definitely want an agreement not to contest your unemployment application in the provision. Normally employers are going to agree to that. If you don’t have that in there then, and they want to be jackasses, they could then contest your unemployment and possibly negate your unemployment benefits. You want to make sure that you’re on the same page with your employer that they’re not going to do that.

Robert Ingalls: 15:44 Sure. How does severance come into play with unemployment? Does that affect your potential unemployment?

Josh Van Kampen: 15:49 Yeah. You got to be careful, because at least in North Carolina and probably in most states you’re not allowed to collect unemployment while you’re also receiving severance, because you don’t have a loss.

Robert Ingalls: 16:00 Kind of double dipping.

Josh Van Kampen: 16:01 It’s double dipping. The safest thing to do is, if you’re receiving severance, not to apply for unemployment until your severance has been paid. Because you’re absolutely not qualified to receive unemployment while you’re also receiving severance.

Robert Ingalls: 16:15 Sure. Is there any other provisions?

Josh Van Kampen: 16:19 Another thing that folks are sometimes concerned with is how is the separation classified internally. Most folks don’t want to have to describe or explain a termination in a job interview. You can use the opportunity in a severance agreement to classify a separation as being voluntary, or as being mutual, or as being a job elimination or another option is to say a non performance-based termination. That way you can avoid those uncomfortable conversations in a job interview.

Robert Ingalls: 16:57 Is there any discussion ever about giving a positive reference?

Josh Van Kampen: 17:01 I don’t know why they never agree to that. Where I’m in a mediation or whatever, I’m like, “Come on. Write my client a letter. It costs you nothing.” I’d say about 85% of the time they just draw a line in the sand and say, “No.” For listeners, the best way to get around that is to not ask for that officially in the severance negotiations. If you’ve got a good relationship with your boss, under the radar your boss may give you a positive reference letter.

Josh Van Kampen: 17:32 If you push for it in the formal negotiations on severance, you’re going to get the no. I’m telling you, you’re going to get the no, and now your boss who might have given you an under the table positive reference might be scared off from doing so.

Robert Ingalls: 17:46 Got you. Earlier we talked about negotiating severance. What are the pros and cons of negotiating for a higher number?

Josh Van Kampen: 17:56 Well, the con is, at least in North Carolina, so when you make a counteroffer to a severance offer, it operates as a rejection of the offer. They’re not required to put that original offer on the table when you make a counteroffer. Now, in my negotiations especially because of the style that I have which is diplomatic and approaching this as a problem to solve, not banging on tables, I always tell my clients that I have little to no concern that an offer is going to be pulled because we made a counteroffer, just because of how we do it. In theory, when you make a counteroffer it can be rejected.

Josh Van Kampen: 18:38 The other thing that can be a little nerve-wracking for clients is that it’s very unlikely that we’re going to get your severance agreement enhanced within 21 days. You got this blinking light, at 21 days you have to sign this or they’re not going to have it on the table. Well, I can tell you that 95% of the time employers are still willing to pay you that original package regardless of whether 21 days went by, because they’re not offering it to you out of the goodness of their heart. It’s a business decision. They want you to sign that waiver and release.

Josh Van Kampen: 19:13 We just blow right by that 21 days, and I don’t ask for an extension. Don’t ask for an extension, because then they’re going to know that you’re worried about it being pulled. You’ve just got to be a cool cucumber, act like you don’t care, and trust your lawyer when he says, “Don’t worry. With the approach that we have and our history, just let me go by those 21 days. You’re going to be all right.” I’ve only had one matter in the 20-something years of doing this where I had an offer pulled, and that was just because the other lawyer was batshit crazy.

Robert Ingalls: 19:51 These things happen. It sounds like it lets the other lawyer or the company know that you know the ball’s in your court.

Josh Van Kampen: 19:57 Correct. Also, for them, they need to know my client’s not signing that.

Robert Ingalls: 20:04 How do I know what the value of my claim is? I know every case is going to be different, but in general.

Josh Van Kampen: 20:09 Well, it goes back to that string that was attached. What legal claims do you have that you’re waiving in exchange for the severance offer? On that one, sorry to say to our listeners, you’re just not qualified to be able to assess what your legal claims are worth. You should consult with an employment attorney. You should talk to an employment attorney anyway, even if you don’t think you have a claim, because there are these, remember these provisions that I said should be poison pills that you’re going to want to change. You should have a lawyer to go over your severance contract to begin with.

Josh Van Kampen: 20:43 While you’re at it, then you want the lawyer to tell you what are my legal claims, what are they worth. That is measured on two axes. One is what is your likelihood of prevailing in the case. What is your likelihood that you’re going to win? Then secondly, if you win your lawsuit, what are you likely to recover? Actually I think the next podcast we’re going to address the different kind of damages that you can recover in a lawsuit. Your lawyer’s going to tell you on the axes what you’re looking at.

Josh Van Kampen: 21:15 For me a lot of it is gut feel. I’ll go into the negotiations with the company with an idea of what I think our client should offer, but I never make an offer on my client’s behalf until I’ve had an initial phone call or even two phone calls with the company lawyer. Because I am dipping my toe in that water. I’m paying attention to his tone, everything he says. Because what I want to do for my client is we want to ask for as much money as we can possibly ask for, but without being detrimental and shooting ourselves in the foot.

Josh Van Kampen: 21:48 That’s why we never make an offer right out of the gates, because I want to have every single data point I can possibly think of. Now, the wildcard in severance negotiations, as well as, regardless of what you can recover in court, what leverage do you have. A lot of times our clients may know where the proverbial skeleton is hidden in the closet. Even though they’re legal claims, lets just say they’re B legal claims, they may have A-plus leverage. We would be foolish not to factor in all the leverage points, legal and non-legal, in trying to get our clients the best deal we can.

Robert Ingalls: 22:25 Sure. Tell me about the approach that Van Kampen Law takes to severance negotiations. When I walk in the door, I sit down and we start working together. What can I expect?

Josh Van Kampen: 22:35 Well, believe it or not, in an hour we’re able to complete a severance review. We’ve just done so many of them over the years and have a pretty good gut feel of whether or not we think that there’s a good opportunity to enhance a severance package. You have to remember that we’re trying to get a company to voluntarily sign a check. If you hire a lawyer who’s nothing but fire and brimstone, that’s not the lawyer you want in a severance negotiation setting, because he’s going to probably do more harm than good, and put them in the corner of the room when you’re trying to get them to meet you at a table.

Josh Van Kampen: 23:15 Approaches is really key, but you still need to be, on the one hand you’re extending an olive branch, but in the other hand you have to have a fist cocked, because they’re not going to give you a good deal because your lawyer was a nice guy. They also have to understand that you hired a trial attorney, an attorney who files a lot of lawsuits that isn’t bluffing. That’s why it’s really important to make sure that you hire a litigator if you’re trying to enhance your severance package and not just a run of the mill civil attorney.

Robert Ingalls: 23:49 Got you. Was there any last words on this subject you want to talk about?

Josh Van Kampen: 23:53 Just final thoughts in terms of pitfalls to avoid. Understand that your severance offer is highly confidential. There was actually an instance where there were negotiations around a severance, or a settlement. We may have talked about it before in a previous podcast, where the daughter of the executive got on social media and bragged about how the family was now going to go on a trip to, I don’t know, some extravagant place, and then made some flippant remark about the employer. In that instance, the severance was lost.

Josh Van Kampen: 24:31 Right off the bat, if you’re in severance negotiations and offers are going back and forth, if you’re represented by counsel or not, each one of those offers you have to treat like a family secret. Don’t leave your severance agreement sitting on the kitchen table. Certainly don’t bring it to the coffee shop, because you’re going to end up throwing away what could be a really good deal for yourself and your family.

Robert Ingalls: 24:52 Got you. Well, thanks Josh.

Josh Van Kampen: 24:54 You’re welcome. Thanks everybody.

Intro: 24:57 Congratulations for taking an important initial step in turning the tables at work. This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com. Better yet, call 704 247 3245 for a free initial intake interview, so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.

Financial Struggles Due to COVID-19 Concerns? Unemployment Benefits May be Saving Grace for North Carolinians, But More Action is Needed

Given the recent pandemic due to COVID-19, many employees are concerned about their ability to earn an income if their workplace shuts its doors, or even if their hours are simply reduced – and rightfully so. Unfortunately, the law has some significant gaps when it comes to addressing such questions as these are unprecedented times that the law had not yet contemplated.