This is one of those situations that might not come up regularly, but it raises a lot of questions about how to handle mistakes.
The company I work for is closing. Each employee is being given a severance package of 1 week for every year worked. I started June 2010. When I was told that I would receive 2.5 weeks of severance, I questioned it and was told my hire date was listed as July 2012.
When I explained my hire date was incorrect, I was told that I had been accruing Paid Time Off (PTO) at a lower rate.
Looking back, there were times when I took time off, didn’t have enough PTO, and lost wages. Does the company owe me back PTO for the last few years? I live in California.
First off, there’s no way we can answer this specific question. There’s simply not enough information. But as I mentioned above, it does raise some good questions about what to do when mistakes occur. So I reached out to one of my favorite labor attorneys to help.
Eric B. Meyer is a partner in the Labor & Employment Practice Group at the Philadelphia-based Dilworth Paxson LLP. He also serves as Chair of the firm’s #SocialMedia Practice Group, and publishes the blog The Employer Handbook, which was recognized as a top labor and employment law blog by the American Bar Association (ABA) Journal. He’s helped us before with reader questions – this one is a fave of mine.
While today’s question comes a California reader, Eric is not licensed to practice law in California. Therefore, please remember that Eric’s comments should not be construed as legal advice (for California or otherwise) or as pertaining to specific situations, such as the one described above. Nothing he says here will create an attorney-client relationship. Eric’s doing this for free; he gets paid to be a lawyer.
Eric, because an employee’s hire date can trigger many benefits, how can employees make sure that their hire date is correct?
[Meyer] I still have all of my paystubs. So, there’s that. But, if other employees aren’t as obsessive as I am, they should check with HR or ask to see their personnel file. Rules on accessing personnel files vary by state; but, most states allow it.
I’m not sure if this is a federal issue, state issue or both. If an employee discovers their hire date is incorrect, and they believe they’ve been receiving reduced benefits, do they have recourse?
[Meyer] It depends what the ‘benefits’ are. Most states have laws that require timely payment of wages to employees. If an employee lives in a state with a law like that, and that law defines ‘wages’ to include the “benefits” at issue, the employee may have a cause of action to pursue under that state statute. The employee may also have a viable breach of contract claim.
For a moment, let’s turn the table and talk about HR. What should human resources do to make sure that employee information is reflected correctly in their systems?
[Meyer] HR can audit personnel files from time to time to ensure that information recorded electronically from hard copy is accurate.
Agreed, auditing is very beneficial. It could uncover situations where the employee received a benefit they shouldn’t have OR did not receive a benefit they should have. If HR discovers that a mistake has been made, what should they do?
[Meyer] It’s tough to deal in ‘should do’s’ here. Generally, my role as an employment lawyer is to explain the options, highlight the related risks/rewards, and then let the employer choose among them. Certainly, one option is to correct the mistake and notify the employee. The other option is to do nothing. The latter, especially if the mistake favors the employer, could save the company money. Or, it could become an expensive lawsuit. That’s up to the company.
Lastly, is “reporting errors” a topic that should be addressed in an employee handbook or internal standard operating procedures (SOP) manual?
[Meyer] HR audits of any type should be scheduled at regular intervals. Memorializing those intervals in an internal SOP manual makes sense, especially where there is attrition within HR.
[Tweet “How should #HR handle their mistakes?”]
A huge thanks to Eric for sharing his expertise. If you’re not already reading his sage advice, be sure to check out his blog and follow him on Twitter. Oh, and if you’re attending the SHRM Annual Conference in Las Vegas this June, mark your schedule to see Eric’s session “My Employees Can Miss HOW MUCH Work?!? Managing leave Challenges Under the FMLA and ADA.” He’s a fabulous speaker.
Image courtesy of Sharlyn Lauby
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